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Can the Senate Save Robert Mueller?

A bipartisan bill to protect the special counsel from Trump is gaining traction, but many hurdles remain—including the president himself.

Brendan Smialoswski/AFP/Getty

It took almost a year, but members of Congress are finally advancing legislation to protect special counsel Robert Mueller and the Russia investigation from President Donald Trump. But their bill faces a perilous journey before it can become law.

A bipartisan group of senators on Wednesday introduced the Special Counsel Independence and Integrity Act, which combines two separate pieces of bipartisan legislation drafted last year by lawmakers concerned about the president’s frequent public criticism of Mueller’s investigation. The bill likely has majority support in the Senate—though the House of Representatives is another story.

North Carolina Senator Thom Tillis and Delaware Senator Chris Coons first drafted a bill last August that would enshrine provisions in federal law making it harder for the president to oust Mueller. South Carolina Senator Lindsey Graham and New Jersey Senator Cory Booker unveiled a similar bill that month also aimed at insulating the special counsel from political interference. But Trump’s outrage on Monday after FBI agents raided the home and office of Michael Cohen, his personal lawyer, brought fresh urgency to the topic. “Many people have said I should fire [Mueller],” the president told reporters. “We’ll see what happens.”

So the two pairs of senators combined their efforts this week in a more forceful bid to counter Trump’s pressure. The four-page bill has two basic parts. First, it requires that a special counsel be fired “only for misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of policies of the Department of Justice.” This would essentially write the Department of Justice’s existing for-cause regulation on special counsels into federal law. The attorney general (or acting attorney general) would also have to provide the reason for dismissal in writing.

Second, the bill sets up a legal mechanism for a special counsel to contest his or her removal. Mueller would be allowed to seek relief from a special panel of three federal judges within ten days of his dismissal. Those judges would have to rule on the matter within 14 days. Any appeals would go directly to the Supreme Court. Except for the timetable, this process matches the one set up by Congress for federal courts to hear legal challenges to legislative districts.

The bill also takes steps to protect an investigation itself if someone tries to remove the special counsel overseeing it. It includes a provision that would require the Department of Justice to preserve the “staff, documents, and materials” of Mueller’s investigation. Another provision forbids the appointment of a new special counsel while the fired one is challenging his or her removal. This would prevent a Justice Department official from firing one special counsel and appointing another one who could dismiss charges or offer plea deals before a court could intervene.

“This compromise bipartisan bill helps ensure that special counsels—present or future—have the independence they need to conduct fair and impartial investigations,” Tillis said in a statement accompanying the new bill. “The integrity and independence of special counsel investigations are vital to reaffirming the American people’s confidence in our nation’s rule of law.”

Under current Justice Department regulations, only the attorney general or acting attorney general can fire a special counsel. For Mueller, that power is held by Deputy Attorney General Rod Rosenstein, who took over supervision of the Russia investigation when Attorney General Jeff Sessions recused himself last spring. The regulations require that the special counsel only be fired for “good cause,” such as malfeasance or a conflict of interest. Rosenstein told Congress in December that he hadn’t seen good cause to remove Mueller from the probe.

Trump could theoretically order the deputy attorney general to fire Mueller. But such a move would almost certainly prompt Rosenstein’s resignation. President Richard Nixon waged a similar campaign to remove special prosecutor Archibald Cox during the Watergate crisis. Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than carry out the order. The purge, which became known as the Saturday Night Massacre, played a major role in turning Congress and the American public against the president.

The Justice Department’s current regulations don’t give Mueller the same level of protection as the defunct Independent Counsel Act, which lapsed in 1999 amid bipartisan opposition. But it effectively forces a president to carry out another Saturday Night Massacre to remove Mueller or any other special counsel from their post without justification. Writing those regulations into federal law would also send a powerful signal from Congress in support of the investigation.

“[Trump], therefore, would have to direct Rosenstein to fire Mueller—or, somewhat more extravagantly, Trump could order the special-counsel regulations repealed and then fire Mueller himself,” Neal Katyal, a former acting solicitor general who drafted the Justice Department’s current regulations in 1999, wrote last year. “Either of those actions was unthinkable to us back in 1999, for we understood that President Richard Nixon’s attempt in this regard ultimately led to his downfall.”

The bill’s supporters cleared a major hurdle on Wednesday when Chuck Grassley, the Republican chairman of the Senate Judiciary Committee, said he would allow a vote as soon as next week on the measure. While Grassley hasn’t said whether he would support the legislation, the Iowa senator raised questions about the proposals’ constitutionality last September.

Whether or not the bill would come up for a vote before the entire chamber is unclear, thanks to opposition from Senate Republican leadership. Majority Leader Mitch McConnell told reporters on Tuesday that he hadn’t “seen a clear indication yet that we need to pass something to keep [Mueller] from being removed.” Trump tried to fire Mueller on two separate occasions last June and last December, according to The New York Times.

Even if the Senate approves it, the bill faces an uphill battle to become law. Republican lawmakers in the House enjoy a larger majority compared to their Senate counterparts, are generally more conservative, and are more interested in protecting Trump than Mueller. Either way, the president would have the opportunity to veto the bill if it reaches his desk. Overriding a presidential veto requires a two-thirds vote in both chambers of Congress—a high threshold that may not currently be surmountable in either the House or the Senate.