WASHINGTON – Congressional Democrats on Friday demanded that lawmakers act to protect special counsel Robert Mueller III after revelations President Trump sought to oust him last summer from overseeing the probe into Russian meddling in the 2016 election.
Several Democrats and one moderate Republican called for votes on Senate legislation that would prevent presidents from firing special counsels unless a panel of three federal judges agreed with the move, citing the revelations that Trump came close to pushing out Mueller last June. The president backed off only after White House counsel Donald McGahn threatened to quit, according to two people familiar with the episode.
Republican leaders show no new urgency to address the matter, saying that the president's threats are isolated and in the past.
"If these latest reports are true, it seems to me that they show the president listened to good advice from his advisers," Sen. Charles Grassley, R-Iowa, who chairs the Judiciary Committee with jurisdiction over any special-counsel bill, said Friday. "Based on his statements from the last couple weeks, he and his lawyers appear to be cooperating with Mueller."
Sens. Lindsey Graham, R-S.C., and Thom Tillis, R-N.C., responding to rumors in the summer that Trump might fire Mueller, each advanced legislation that would involve a panel of federal judges in any decision to end a special counsel's tenure. Graham's bill, co-written by Sen. Cory Booker, D-N.J., and other Democrats, would require a three-judge panel to approve a presidential order to fire a special counsel. Tillis' bill, written with Sen. Christopher Coons, D-Del., would allow a fired special counsel to appeal the president's decision to a panel of judges, to avoid trampling the president's executive authority.
Lawmakers have thus far not been able to reconcile the two bills and satisfy Grassley, who says he has "constitutional concerns" with the legislation and will address only one bill in committee.
Moderate Republican Rep. Charlie Dent, Pa., predicted that the news that McGahn "prevented an Archibald Cox moment" – a reference to the prosecutor whose firing President Richard Nixon ordered during the Watergate scandal – would increase pressure to "protect Mueller." But Republicans remain unruffled even as the president is expected to be interviewed by Mueller's team.
"The timeline is critical here," Tillis spokesman Daniel Keylin said Friday, noting that Trump sought to fire Mueller in June and the bills were introduced in August. Since their introduction, Keylin said, "the chatter that the administration is considering removing special counsel Mueller has completely come to a halt."
Democrats, frustrated by what they see as Republican recalcitrance, openly accuse the GOP of abetting an all-out assault on the special counsel and the federal law enforcement agencies assisting him.
"Republicans in Congress have been co-opted into participating and amplifying these attacks" against the Justice Department and the FBI, said Rep. Jerrold Nadler, N.Y., the ranking Democrat on the House Judiciary Committee. The GOP, he added, is complicit in "sham investigations" of Trump's former political opponent Hillary Clinton to distract from the inquiries into the president's alleged ties to Russia.
Republican lawmakers are examining how the FBI and Justice Department handled their investigations of Clinton's use of a private email server while she was secretary of state. They also question the veracity of a now-famous dossier – financed in part by the Clinton presidential campaign and the Democratic National Committee – that suggested Trump had personal and financial ties to the Kremlin. Late Friday, Grassley and Graham released letters to both Democratic organizations and their top officials demanding information and documents about how the dossier was compiled.
Republicans say their scrutiny is appropriate and does not undermine Mueller's probe.
This week's revelations about Trump's attempts to oust Mueller, first reported by the New York Times, came as the special counsel has been deepening his investigation into potential obstruction of justice, according to people who have interacted with his team. Asked about the report Friday at the annual World Economic Forum in Davos, Switzerland, Trump declared it "fake news."
It would be natural for Mueller to investigate an effort to oust him as special counsel, said Paul Rosenzweig, a senior fellow at the criminal justice think tank the R Street Institute, who was a member of the team led by independent counsel Kenneth Starr that investigated President Bill Clinton in the 1990s.
Obstruction-of-justice cases turn on motive, he said. To prove a criminal case, a prosecutor must demonstrate that a defendant took action to disrupt a criminal probe with a corrupt motive, generally to hide criminal activity. Rosenzweig said that Mueller could use Trump's attempt to remove the special counsel as part of an obstruction case, particularly if it appeared that the reasons Trump tried to cite were a pretext for disrupting the investigation.
"A way of analyzing it is to assess the strength or weakness of the professed reasons to fire him. If they, on reflection, seem moderately legitimate, well, the president should fire someone who has a conflict of interest." On the other hand, Rosenzweig said, if the reasons were "pretextual," an obstruction case would have more merit. "It would appear more in the nature of a conscious . . . effort to frustrate an investigation of [the president's] own misconduct," he said.
Rosenzweig said the whole issue could be moot, however, given that Mueller is likely to feel bound by Justice Department legal findings that the president cannot be criminally indicted. Instead, Mueller could file a full accounting of Trump's actions in a report to Deputy Attorney General Rod Rosenstein, who would have to decide whether to make the report public or transmit it to Congress. It would be for Congress to decide whether to initiate impeachment proceedings and what legal standards would govern whether the president had committed impeachable offenses.
Democratic leaders in Congress have shied from discussing whether they should try to impeach Trump, which would first require Democrats to assume the majority in one chamber of Congress. Those involved in negotiations over bills to protect the special counsel, including Coons and Booker, say they just want a vote.
The bill's authors agree that getting around separation-of-powers concerns requires a 10-day delay before any presidential order to fire the special counsel would take effect. In that time, a fired special counsel could fight the decision before a panel of judges. But senators remained concerned that a court could act unilaterally to extend that timeline, preventing a president with legitimate complaints from acting swiftly.
Democrats, for now, seem less concerned with future presidents' autonomy than with checking Trump vis-à-vis Mueller.