Sen. Jeff Flake (R-Ariz.) tried once again to protect Special Counsel Robert Mueller by calling for a vote on the Special Counsel Independence and Integrity Act, which would put new restrictions on terminating a special counsel. Flake, with support across the aisle from Sen. Chris Coons (D-Delaware) and Sen. Cory Booker (D-N.J.) pushed the bill, only to get shot down by an objection from Sen. Mike Lee (R-Utah). In order for a bill to go to the floor for a vote, there must be unanimous consent, so Lee’s objection was enough to derail the bill for now.
The bill, if passed, would only allow someone in Mueller’s position to be dismissed by someone who has been confirmed by the Senate. This would disqualify Acting Attorney General Matthew Whitaker, who was not confirmed. The bill also provides for a special counsel to challenge their termination in federal court. Senate Republicans have been at odds over the bill, with Senate Majority Leader Mitch McConnell (R-Ky.) blocking it in the past, and Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) supporting it.
Lee was among those on President Donald Trump‘s short list of Supreme Court candidates earlier this year, and if there was ever a question as to what sort of jurist he would be, he provided some insight in his statements on Wednesday.
Lee claimed that the bill would be unconstitutional on the grounds that it violates the Appointments Clause of the Constitution, which places power over prosecution in the hands of the executive branch, and by definition, the president. He cited Justice Antonin Scalia‘s dissent in Morrison v. Olson, where the late conservative icon railed against the notion of an independent counsel, since it places power outside the reach of the president.
“We cannot convert an office like this one, an office like the previously existing office of independent counsel without creating a de facto fourth branch of government, fundamentally undermining the principle of separation of powers that is so core to our liberty,” Lee said.
Senator Coons challenged Lee by asking if Scalia’s opinion was the majority. Lee acknowledged that it was not, but maintained that at the time, “it was somewhat novel, it was somewhat new.” Now, he claims, Scalia’s opinion has been adopted by people on both ends of the political spectrum. “I challenge every one of you to read it. It’s right.”
Coons noted that a D.C. Circuit Court opinion this year upheld Morrison.
If the principles in Morrison reach the Supreme Court again, the outcome may very well be different. Newly appointed Justice Brett Kavanaugh has expressed his distaste for the Morrison decision. In a 2016 interview with the American Enterprise Institute, Kavanaugh was asked, “Can you think of a case that deserves to be overturned?” After playing coy for a bit and refusing to say which one, Kavanaugh said, “Actually, I’m gonna say one. Morrison v. Olson.”
“It’s been effectively overruled,” he said, “but I would put the final nail in it.”
[Image via NBC screengrab]