The Unitary Executive and Robert Mueller

Promoted from the diaries by streiff. Promotion does not imply endorsement.

Robert Mueller by DonkeyHotey, licensed under CC BY-SA 2.0/Original

Most conservatives and libertarians believe in the concept of the unitary Executive.  This does not imply that a President’s power is unlimited, or even that it is overly broad.  Instead, it asserts that whatever authority the President has must be controlled by the President.  This means that except in a few cases, such as Senate confirmation of Cabinet officers and others as dictated by law, the President is free to hire, fire and issue orders to any Executive Branch official.

Ben Sasse, no friend of Trump, voted against a bill in the Senate Judiciary Committee designed to protect Special Counsel Robert Mueller from being fired by Trump.  Although the bill passed the committee vote 14-7, Sasse’s opposition was based on the unitary executive theory.  Article II of the Constitution states “The executive Power shall be vested in a President of the United States.”  It does not say that this executive power can be divided among the different branches of government.

However, it is possible that the unitary executive, which was likely what our Founders intended, was for a simpler time.  Today, the President presides over a vast federal bureaucracy.  While it is true that our Founders feared the concentration of too much power in one branch of government, especially one person, they nevertheless created the unitary executive by the virtue of 15 words in Article II.

The investigation and prosecution of criminal wrongdoing and corruption within the Executive Branch are nothing new.  They date to our founding.  It is not some new federal power, but the way it is being wielded and defended in the present sense is taking us into some uncharted territory when the chart should be the Constitution.

Under that Constitution, it is beyond the power of Congress to limit, prohibit or even impose conditions upon the Executive branch headed by the President to remove a political appointee within the Justice Department, or any other Executive Branch department for that matter.  Under the legislation proposed by Sen. Tillis (R-NC) and Coons (D-DE) called the Special Counsel Integrity Act, only the attorney general or someone acting for him could remove Mueller, or discipline him.  The bill clearly violates basic constitutional principles.

Under Article II, Section 2 the president is given the authority to appoint – with the approval of the Senate – “Ambassadors, other public Ministers, and Consuls, Judges of the supreme Court, and all other Officers of the United States.”   Congress is also allowed, by law, to “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

In practical terms, this means the President staffs the Executive branch with 4,000 employees- about 1,000 of which require Senate confirmation.  The vast remainder are “inferior” officers who can be appointed by Trump or cabinet secretaries.  All of these officials serve at the pleasure of the President.  They can be removed by the President for any reason, or no reason.  There are, of course, exceptions like the heads of certain agencies (like the FEC or SEC).  Furthermore, the fact that a cabinet official may appoint political subordinates (like a special counsel) in no way takes away the authority of the President to remove those subordinates.

Under the Constitution, the President is sworn to faithfully execute the laws.  That authority has been delegated to the Justice Department under the President’s guidance and control.  That delegation, however, does not suddenly void a President’s power to remove political appointees within the Justice Department.  And make no mistake: Robert Mueller is not a civil servant; he is a political appointee.

In 1935, the Supreme Court did set some limits on who a President can fire.  The reason, in that case involving the FTC, was that such agencies have “quasi-legislative or quasi-judicial functions.”  As such, they are not the “arm or eye” of the Executive branch.  The Justice Department clearly does not fall under that exception.  It is most assuredly an “eye” and an “arm” of the Executive Branch.

In fact, the law being pushed by Coons and Tillis is similar to a provision in the Sarbanes-Oxley Bill that was struck down by the Supreme Court.  That provision set up a Public Company Accounting Oversight Board to be appointed by the SEC.  Members of the Board could only be terminated for cause by the SEC and SEC members themselves were already protected against termination by the President but for cause.  In effect, the Court ruled there were two layers of insulated tenure.  Without the ability to oversee the Board’s conduct, the President was effectively blocked from ensuring the laws were being faithfully executed.

Tillis and Coons are attempting to take away the presidential power to ensure the accountability of subordinates in the Justice Department.  This is a direct attack on the President’s constitutional authority.  And while proponents of the bill will cite Morrison vs. Olson which upheld the independent counsel law that led to Kenneth Starr’s never ending investigation, the law was rightfully left to expire and never renewed.  It was Scalia’s dissent in that case that said it all: the law created a law enforcement prosecutor unaccountable to the Nation’s chief law enforcement officer- the President.

Mueller is not some independent prosecutor chosen by a group of judges.  He is a political appointee of the Justice Department.  That department is part of the Executive Branch under the control of the President.  Congress cannot limit the President’s authority to remove such political appointees.

Senator Grassley (R-IA) has expressed his concerns over the bill.  Mitch McConnell (R-KY), Senate Majority Leader, has vowed not to bring the bill forward for a floor vote on constitutional grounds.  Hopefully, he will show some spine and stick to it.

This article in no way implies that firing Mueller would be a good idea.  From a legal and constitutional perspective, Trump would be on solid ground to do so.  However, politics and solid legal, constitutional ground are not the same thing.  Regardless, as others have noted, with very little to show for his investigation, support for the Mueller investigation is growing thin.  If he had any sense, he would wrap up the investigation and then reveal to the American public how much was spent on this trip down the rabbit hole.