The Special Counsel Independence and Integrity Act is unconstitutional hogwash

· April 12, 2018  
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Republican Senators Lindsey Graham, R-S.C., and Thom Tillis, R-N.C., are leading an unconstitutional, bipartisan effort to shield special counsel Robert Mueller from President Trump’s executive authority to fire him.

The Senate Judiciary Committee, of which both senators are members, will vote on the Special Counsel Independence and Integrity Act to enact a statute that would prohibit the president from firing a special counsel, giving that power to the attorney general. It would also stipulate that a special counsel could only be fired for good cause, i.e. misconduct, and would create a 10-day judicial review period during which an aggrieved special counsel could argue his firing was not for good cause. If the judge agrees with the special counsel, under this proposed law, he would be reinstated against the will of the attorney general and of the president.

Graham and Tillis, along with Democratic Senators Cory Booker, D-N.J., and Chris Coons, D-Del., are sponsoring the bill.

“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. “The integrity and independence of special counsel investigations are vital to reaffirming the American people’s confidence in our nation’s rule of law.”

“Special counsels must act within boundaries, but they must also be protected. Our bill allows judicial review of any decision to terminate a special counsel to make sure it’s done for the reasons cited in the regulation rather than political motivation. I think this will serve the country well. I look forward to working with my Democratic and Republican colleagues to make this law,” said Senator Graham.

This legislative action raises serious constitutional concerns. Article II of the U.S. Constitution invests the executive power in the president of the United States. It’s in the first sentence of Article II, Sec. 1: “The executive Power shall be vested in a President of the United States of America.”

Prosecutorial powers are an executive power. Every federal prosecutor, including the attorney general, his subordinates, and his appointees like a special counsel are constitutionally under the umbrella of the president’s authority. These civil servants, indeed the entire Department of Justice, serve at the president’s pleasure. He may fire them as he sees fit.

It is illogical and unconstitutional to pass a law that grants the attorney general the power to fire a special counsel but deprives the president of this right.


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Author: Chris Pandolfo

Chris Pandolfo is a staff writer and type-shouter for Conservative Review. He holds a B.A. in politics and economics from Hillsdale College. His interests are conservative political philosophy, the American founding, and progressive rock. Follow him on Twitter for doom-saying and great album recommendations @ChrisCPandolfo.

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