Legal Analysis

Current SCOTUS Case May Shed Light on Robert Mueller’s Future

What does a Supreme Court case about administrative law judges (ALJs) and the Securities Exchange Commission (SEC) have to do with the Russia investigation? A lot more than one might think.

Later this month, the Court will hear arguments in Lucia v. SEC, which deals with whether ALJs should be considering officers of the United States or merely agency employees when it comes to the Appointments Clause.

While the outcome of that case isn’t particularly relevant to Special Counsel Robert Mueller, George Washington University Law Professor Richard J. Pierce noted that an argument made by the government in the case is. Pierce discussed in an op-ed for The Hill that the government wanted the court to address whether it’s constitutional to restrict agencies’ ability to fire employees unless it’s “for cause.” The Supreme Court refused to make that an issue in the case, but the government’s brief still argued that it’s unconstitutional for Congress to limit the president or president’s appointee’s power to fire an employee. Even if such terminations could be limited by statute to only be “for cause,” the government’s argument was that “cause” should be broadly interpreted to mean pretty much any reason.

This is important because the person making this argument for the government is Solicitor General Noel Francisco, who just happens to be the next person in line to oversee Robert Mueller‘s investigation if Deputy Attorney General Rod Rosenstein is fired.

“With the Attorney General recused, the Solicitor General would then be the acting Attorney General for purposes of the regulation that governs the removal of the special counsel,” Pierce said in an email to Law&Crime. “We now know from his brief that the solicitor general believes that cause can mean virtually anything. There is every reason to believe that the solicitor general, Noel Francisco, would then fire Mueller ‘for cause.'”

Whether President Donald Trump or Attorney General Jeff Sessions will fire Rosenstein is an issue that has been the topic of recent debate. Rosenstein has said that he wouldn’t fire Mueller without good reason, but Francisco appears to be more flexible. Pierce said that if Francisco were to fire Mueller, it’s “not at all clear” that a court would find something wrong with it.

[Image via Alex Wong/Getty Images]

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