May 7, 2018

ELIZABETH PRICE FOLEY IN THE HILL: Mueller’s jurisdiction must be limited.

Special Counsel Robert Mueller’s investigation has begun to reek of both desperation and megalomania. On Friday, a federal judge overseeing the Paul Manafort prosecution, T.S. Ellis III, questioned whether the special counsel has strayed beyond its original jurisdiction over possible Trump-Russia collusion, demanding to see an unredacted version of a memo penned by Deputy Attorney General Rod Rosenstein that allegedly authorizes the special counsel to pursue Manafort for unrelated matters dating to 2005.

Judge Ellis expressed concern that the special counsel was claiming “unfettered power” to investigate anyone, for anything, in an effort to inflict political harm on the president. “You don’t really care about Mr. Manafort,” Judge Ellis told Mueller’s team. “You really care about what information Mr. Manafort can give you to lead you to Mr. Trump and an impeachment, or whatever.”

Judge Ellis’s legal instincts are right. The special counsel, like the independent counsel that preceded it, is a dangerous constitutional hydra. In 1999, Congress allowed the old independent counsel statute to lapse because independent counsels routinely had strayed beyond their original jurisdiction, morphing into political witch-hunts aimed at embarrassing, hindering and impeaching presidents.

Independent counsel investigations had infuriated both sides of the political aisle: Republicans were furious with the Iran-Contra investigation led by Independent Counsel Lawrence Walsh. Democrats were furious with the Whitewater investigation led by Independent Counsel Ken Starr (which ultimately led to House impeachment of President Clinton).

In place of the independent counsel statute, we now have special counsel regulations, issued by the Department of Justice. In theory, the special counsel regulations are supposed to be “better” than the old independent counsel law, because the lines of political accountability to the president are stronger, with the special counsel being an employee of the Department of Justice who can be fired by the attorney general for “good cause.” The attorney general, in turn, serves at the pleasure of the president, and can be fired for any reason.

But when Attorney General Jeff Sessions recused himself, President Trump’s opponents immediately began a campaign asserting that any effort to fire Rosenstein or Mueller would constitute an obstruction of justice. Nothing could be further from the truth: The president has plenary constitutional authority to fire his executive branch officers. This is so because the executive branch is not a “fourth branch of government” — it is the second branch, a manifestation of power granted to the president by Article II of the Constitution.

She’s right.

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