Mueller legislation is unconstitutional: Sen. Mike Lee Don't pass the Special Counsel Independence and Integrity Act: Opposing view

Mike Lee | USA TODAY

Show Caption Hide Caption Trump: Mueller and Rosenstein 'still here' President Donald Trump is passing up a chance to say whether he will fire special counsel Robert Mueller and Deputy Attorney General Rod Rosenstein. He says there's been speculation that he would get rid of them but "they're still here." (April 18)

This week, the Senate Judiciary Committee will consider legislation providing that any special counsel appointed by the Justice Department may be fired only for good cause and allowing a special counsel who has been fired to challenge the decision in court.

The proposal is politically salient because many fear the president will fire Robert Mueller. To be clear, the president should allow Mueller to finish his investigation into Russia’s election interference in a timely fashion.

But this legislation is unconstitutional, and political expedience can never trump the Constitution.

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Supporters of the legislation argue it is necessary to ensure no one is above the law, but the Constitution is the highest law of the land, and the Constitution provides that only the president can exercise executive power.

Because the power to prosecute is the quintessential executive authority, any congressional attempt to direct prosecutions — including by limiting the president’s power to fire a prosecutor — is an unconstitutional breach in the separation of powers. All senators swear to uphold the Constitution, and I hope that the full Senate will not pass this legislation, if it advances out of committee.

Moreover, the Constitution itself provides several ways to hold executive branch officials accountable, most notably through elections. We should stick with those remedies, because undermining the separation of powers is a grave threat to liberty.

Some may question how legislation meant to hold the president accountable is a danger to liberty. It’s because it would empower the creation of unaccountable federal prosecutors who could not be fired for acting unjustly or unwisely. In 1940, then-Attorney General Robert Jackson said “the prosecutor has more control over life, liberty and reputation than any other person in America.”

That’s even more true if the prosecutor has been made unaccountable to the public, yet that’s exactly what this legislation aims to do.

Sen. Mike Lee, R-Utah, is a member of the Senate Judiciary Committee.

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