Transcripts For CSPAN Hearing Focuses On Role Of Special Counsels 20170927

Has anything on what i am talking about, she would get whatever time she wants. From my regular opening statement, i needed to talk about a serious threat to this committees Oversight Authority briefly. The need for congress to have access to information in the several branch is inherent in the constitution. It access so clearly and foratedly permit executive Branch Agencies cannot limit our legislative power of inquiry merely by entering into nondisclosure agreements with one another. That is exactly what the fbi has tried to do. Yesterday i sent a pair of letters about the most recent example. Nondisclosure agreements are essentially gagged orders. Transparency, accountability, and seek congressional oversight. Os see, not a appointedprosecutor by the department of justice like mr. Mueller. Following complaints, the office of special counsel will open a special investigation of director comey. Law, one of the jobs is which makes it illegal for government officials to engage in political activity so the opposite special counsel began seeng to gather evidence to if mr. Comey had political motivation. The fbi refused to cooperate voluntarily. Osc could have engaged in a handingttle to force over the information, but they were less concerned about osc than they were about congress oversight. Fbi the fbi demanded the osc not give the information to congress. A gag order was the price of quick and easy access to the information by that agency. The deal. K but the documents and transcripts are vital to this committees oversight of the fbi. To obtain to heavily redacted with its interviews that showed mr. Comey had made up his mind and started drafting his controversial documents months before the clinton investigation was over but we were not consulted or informed about the gag order until after the fact. According to osc, the fbi has never asked for such a gag order before. Neither has any other agency. Why now . Why is the fbi so focused on keeping congress in the dark . Why is it so afraid of shining the light of day on the controversial decisions mr. Comey made in the months before he was fired . This is not the first time the fbi has tried the strategy. It also reportedly made all of the agents working on the clinton investigation agreement agreed to a special gag order. But the executive branch cannot avoid constitutional oversight by assigning agreements. This committee has Oversight Authority over the department of justice and the fbi. If there is any with of influence in these institutions under any administration or any party, this committee has a duty to get to the bottom of that. That is exactly what we will do. I expect full, complete, and timely answers to my letters. This committee needs to see people witness interview and all of the documents including drafts and memos about come east decision to make that controversial Statement Last summer. I will do everything in my power to make sure we do. Give anything you want to say . Thank you. As a member of the Intelligence Committee i have been privy to some pieces of intelligence. It seemed to me when i sought it was relevant to this committees oversight and yet this committee cannot receive it, so i have sent a letter which documents theroles and hopefully Intelligence Committee will be thatnsive in matters , there isersight clear oversight of the Justice Department and therefore matters of obstruction of justice are within the jurisdiction of this committee. So, hopefully, we will be able to obtain that. I just have not had a chance to tell you that but i did it. Thank you. Welcome everybody to this very Important Committee meeting and hearing that has a very issuesonstitutional connected with it. We have an outstanding panel to help us go through this. So todays hearing will hear testimony related to two bills recently introduced by members of our committee. 1725 introduced by graham, white house, blumenthal as well as senator booker who is not a member of this committee. By senatorsroduced tillis and coombs. These have in common attempts to about drg regulation doj regulation about special counsel. It specifies a bill about removal decision and each bill has bipartisan support. It is also clear that each bill is motivated by similar concerns about Robert Mueller and his investigation into government efforts to interfere in the president ial election. One of the bills even specifies and applies retroactively to the date of Robert Muellers appointment and both bills were introduced when media speculation was rampant that President Trump was mueller. Ting firing the president has said he did not intend to fire mueller and i think you made the right decision. I hope this investigation proceeds to its conclusion rapidly and stays focused on whatever the attorney general it totein charged investigate. The American People can be sure that this committee, which has doj, fbi,on over etc. , will take its oversight role over the investigation as seriously as i think this committee has a reputation for doing. While there are no doubts that Current Events are relevant to the information discussed today, it is my sincere hope that during todays hearing the committee will engage in discussion and the grant tradition of the senate as a deliberative body. For both of the bells, we will discuss raising potential separations of powers, concerns i think deserve the attention of the committee and respectful discussion. The issues we discussed today are bigger than me president or any of us. Define our republic. When they drafted the constitution, founders of this nation were rightfully concerned that those in power would be use it to tempted to favor their own actress. To prevent this, they divided power between the three branches of government that i dont have to reiterate. James madison put it this way, ambition is made to counteract ambition. Fundamental liberties are protected. There are those who argue that the rise of a modern Administrative State with its agencies of executive and legislative powers and even judicial powers sometimes have weakened the separation of power provisions of our constitution or at least changed how we should understand that. I believe that our Government Works best when each branch of government has a clearly defined even in i think that our modern times, with our greatly expanded federal government, that is not too much for us to hope for. That, it is something that we as members of Congress Must carefully consider as we look at this drafted legislation. These bills are good policy argue that codifying the doj special counsel regulations and providing judicial review over removal decisions, they provide useful certainty about how disputes or the removal of a special counsel officeroceed before the of special counsel needed independence. Others argue these efforts run afoul of the constitution by interfering with the ability to control the executive branch and make sure the laws are faithfully executed. I hope that both those who view these bills as constitutional and those who express their constitutionalre can agree on one thing. Ofre is a robust role congress and overseeing the executive branch, including all investigations conducted by the appointed of justice as special counsels. The American People also apply an oversight role and can apply political pressure to any president who removes special do not for reasons they consider adequate. Finally, the constitution gives congress a check on the executive branch through the power of impeachment. Every american has a right to expect their government to be ethical, effective, and accountable. If theres one thing ive rned in my career as both and senator, it is where the sun pokes through there can be no darkness. I have spent my career as a strong advocate for openness and transparency in government but i also believe that the separation of powers is essential to preserve the liberties we americans and joy. I look forward to todays hearing. Senator feinstein . Right thank you. Let me of senator feinstein let me if i might make a correction of my earlier remarks. The letter i mentioned on intelligence sharing of this committee was sent to the director of the cia mike pompeo and was signed by both the chair and Ranking Member of this unity. We sent it yesterday and i ask that it be incorporated in any record. It will be a new record. Senator feinstein thank you and thank you for calling ms. Hearing to address the two bipartisan bills to protect the integrity of the special counsel. Today, under the Car Department of justice regulations, the special counsel, as everybody find fornnot we anything but misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause. Those regulations have been a plaisance 1999. In place since 1999 and were integrity and a fresh reality when the department of justice has a conflict of interest. They have been a place in both republican and democratic administrations and neither the efficacy has ever been question. Both of the bills we are considering today provide extra layers of protection for the special counsel. They were introduced on the heels of reports that President Trump was contemplating firing special counsel bob mueller. The man who has brought bipartisan support and who has served this country with honor and distinction. I think my colleagues from both parties agree that firing Robert Mueller would be a grave mistake. For example, senator graham, star of stage, screen, and radio now [laughter] senator feinstein has said that unless bob mueller did something wrong, firing him could be the beginning of the end of the trump presidency. And senator markey has gone so far as to say that doing so would be a fullblown constitutional crisis. Firing special counsel bob mueller would be that much more concerning given widespread understanding that individuals close to the president or even the president himself had tried to tip the scales of the Russian Investigation. We have all heard President Trumps reaction when attorney general sessions recused himself from the russia investigation. Even though the attorney general acted properly, the president berated him because the recusal led to the appointment of the special counsel. Several months ago, we also heard from former fbi director james comey, who testified before the senate Intelligence Committee that he felt pressured by the president to lets lend and, to quoteo. , even though an fbi investigation was in process. Simply put, i have serious concerns about President Trumps respect for the rule of law. The president must know that congress will not stand idly by a few temp to undermine if he attempts to undermine criminal investigations. Turning to the bills themselves first, they both require good cause because before the special counsel may be removed this means that the attorney general could not fire the special counsel absent some sort of miss misconduct, illegal act, or violation of Justice Department policy. Secondly, if the attorney general finds it good cause to remove the special counsel, both bills allow a court to review that finding. The two bills differ a bit. Is by senators graham and booker and cosponsored by senators white house and blumenthal would require a court to determine that good cause exists before the removal of the special counsel. And, the bill introduced by senators tillis and coombs would allow the special counsel to act as a court for reinstatement after the fact of the removal was not for good cause. That bill also provides that if the attorney general is recused, only a department of justice senatel confirmed by the could fire the special counsel. We are joined today by 8 00 p. M. Love distinguished legal experts and i very much look forward to this discussion. I expect much of it will cover Supreme Court precedent and whether the president precedent applies to todays consideration. While president is certain precedent is certainly important, i am certain we will not let a discussion of legal theory prevent us from speaking about the real World Problems these bills address. 1973 ine that the 1973, president and wanted to fire special prosecutor conductingox who was the watergate investigation, but the Watergate Special prosecutor can only be removed by the attorney general and only for good cause. President extends order to fire the special prosecutor led to the saturday night massacres and resignations of attorney general Elliot Richardson and Deputy Attorney general william motherhouse who both determined there was not good cause to fire cox. Although cox was ultimately dismissed, it was not before two Justice Department officials had sounded the alarm on president nixons interference with the investigation. Projectionsf that like the ones we are discussing today are not only necessary but they also work. Past is prologue, what we are discussing today could not be farther from being them merely theoretical. With that, i will turn to the chairman. Thank you. Already referein to our panelists as distinguished analyst. Noted if i refer to one of those, i will never get to your remarks. I will give a short introduction of each of you. Be inning remarks will the record so you will know i have absorbed that you are all very distinguished in your professions. He she has received deals award for teaching excellence. He has been cited by the Supreme Court in over 30 cases and has authored dozens of law review articles that im going to put into the record. Our second witnesses professor distinguished Service Professor of law at the university of chicago. Teachess about and legal theory in constitutional law including the law of president ial powers and he has written more than 100 articles and more than a dozen books, including two of the power. Ntial one entitled the executive madisonianer the , and he is published in various important newspapers and articles of record. Our third witness, professor professor at the university of texas school of i, isenator cornyn and hope i suppose in difference to you sir. , im happy to have summary from the university of Texas Law School here today. We discussed in the pfizer reauthorization yesterday and austin. So im happy to have him here. A professor at the university of texas school of law, where he federal jurisdiction, constitution and National Security law, his work has appeared in a number of legal publications including harvard law review and deal law review and the rest of that will go into the record. Our final witness, Professor John duffy, professor of law. A merrill professor vlad the university of virginia law school. He teaches tort, administrative law, and International Property law. He has also served as articles editor for the university of chicago law review and was awarded the fellowship in law. Nd economics professor duffy clerked for judge stephen williams, u. S. Court of appeals for the washington, d. C. , circuit and for Justice Elliot served as attorney advisor in the department of Legal Counsel and practice like covington. Much. Also published the committee has also received a letter from Professor John harrison, the James Madison distinguished professor of law at the university of virginia law school. In it, professor harrison discusses his view that both of the bills we are considering today would encounter significant constitutional difficulties and that letter will be put in the record. We will start with you, professor. Thank you. The 200 investigation into the worked including the possible removal of Robert Mueller. The bill has laudable goals and it is heartening to see bipartisan sponsorship. Several of the bills cosponsors are my dear friends. I have no such personal relationship with President Trump, whose wings he bills aim to clip. Registered democrat, publicly oppose mr. Trump and the 2016 campaign and i am distressed by many of the things he has done and it aims to do. That said, i must sadly report that as a scholar who studies the constitution i believe the bills in their current form are unwise and unconstitutional. It gives me no pleasure to say this but i need to be straight with this committee. Areily, i think there alternative reforms that i think are more constitutionally proper and are more likely to achieve the laudable purposes of these bills to restrain unprofessional president ial behavior. Think these bills are likely to be vetoed, judicially invalidated, and in any event or violations of the federal constitutional principles and so my preferred alternative and keeping, mr. Chair, with what you said, the one thing we can all agree on you said is that there is a role for congress and overseeing the executive branch and i actually think that this body itself has more resources and would be better advised to use some of its own powers than to try to punt things over to the judiciary the way these bills try to do. The bills wereif to reach the president s death, think you might be very inclined of course to veto them. It will be hard to overturn. Only twice since 1952 has a president to control both houses of congress had a veto overridden. Anis likely to be backed by onc memo, a broad range of Public Opinion, people who claim he is defending the presidency more generally and various Public Opinion members would veto that. Instead of checking and restraining him, this would actually have our him. Where the issue to reach the courts i think there is a disagreement among the very distinguished panelists, i count six likely votes for invalidation and we can go through my reasons for that and the senators are so inclined and that, too, would end up boom ringing and backfiring rather than accomplishing the need to jason and check this reigning president who is attempting to abuse power. In a nutshell, the constitution says someone like Robert Mueller who is not confirmed by this body is constitutionally an inferior officer. It is very hard to be both inferior and independent at the same time. It is like a square circle. These bills try to make someone who is inferior also independent and constitutionally, that is a problem. Technically, the reason he is independent right now as he cannot actually be fired by the executive branch. You are a channel many of the things Justice Scalia said in his most famous opinion. In mygo beyond that and written testimony, it is available of course to you all. My proposed alternative in the spirit of federalist 51 is to actually have a standing Bipartisan Committee of this body, equally balanced, like the Senate Ethics committee is, a Standing Committee on president ial oversight and this tomittee would aim institutionalize the true separation of powers rather than the mayor separation of parties. You would not be asking republicans and democrats as such, but you would be acting as executive. Ecking the you would be channeling the best thing about these bills. Bipartisan structure. Instead of hunting claims to the judiciary, you would be emulating the judiciary at its chief Justice Marshall ,eaches out across the aisle you could be doing actually what the judiciary has done at its best rather than punting things itself. Udiciary thank you mr. Chairman. Thank you. I shouldve told all of you that your full statement will be put in the record. Youve probably been told that but i want you to know the five minutes is a short time for all of you folks that right so much so [laughter] grassley . Good morning thank you for providing me the opportunity to testify on special counsel and the separation of powers. I have evaluated the two under consideration and i conclude they do not relate the principal separation of powers, but on the expands important constitutional values. Senator feinstein mentioned the saturday night massacre. I want to bring this a little bit back to light, especially for people who were young, as i was when it took place. On saturday, october 20, 19 73, president Richard Nixon ordered the attorney general to fire archibald cox, the Watergate Special prosecutor. He had earlier issued a subpoena for the watergate kids. When attorney general Elliot Richardson refused and resigned, the president ordered Deputy Attorney general to fire cox. The Deputy Attorney general also resigned rather than carry out the president s order. The president then asked solicitor general robert board to fire cox. During a leadership vacuum, the Justice Department the saturday night massacre disseminated the long political crisis into a fullblown constitutional crisis. Four years after nixons resignation, Congress Passed the ethics and Government Act of 1978. A provision of that law created a new kind of special prosecutor, later called independent counsel, who could be fired only for good cause and given significant independence and was appointed by a panel. Ensure awas to constitutional crisis like the saturday night massacre would never occur again. Goal overt place that a roughly 20 year time it was in effect despite the records of significance controversies over executive branch wrongdoing during the Ronald Reagan and bill clinton administrations. Congress allowed the independent 1999. L act to lapse in critics argued wall street had too many independent counsel spending too much money investigating an important matters. Questionever come the is not whether to revive the independent counsel but whether to give special counsel selected by the attorney general and subject to department of justice regulations which is why they are in your offices, protection from removal except for good cause. Over the years, many people have raised questions about whether congress is allowed to put on its on the president ial authority over Law Enforcement. Lateargue such limits by he principle of separation of powers. ThiSupreme Court rejected in 1988. The courtecision, ruled the independent counsel law did not violate separation of powers. The reason was the law did considerable good by enhancing the integrity of investigations of the executive branch and only moderately restricting the president ial power. Since the bills under investigation today consideration today restrict less than independence of counsel, they pass muster as well. Not everyone agreed with the Supreme Court opinion. Powerfulcalia, the opinion one much praise. Theres good reason Justice Scalia did not persuade any of his colleagues. First, Justice Scalia claimed it gave complete control over Law Enforcement to the president so any attempt by congress to influence Law Enforcement violates separation of powers. However this was not the not trueding and is today. The constitution itself gives Congress Power over Law Enforcement explicitly in the text through appointments, in its power to define offices, in andpower to control Budget Congress has used the power of the years in many ways. Second, Justice Scalia claimed an independent counsel is unaccountable. He cannot be punished for you misusing his power. Meanwhile, the president can be. It is just as clear put it, the president is directly dependent on the people and since theres only one president , he is responsible. The people know who to blame. Anthe watergate burglary was active political espionage. One of many that helped Richard Nixon when reelection in 1972. The people could not punish president next and at the polls because they did not know about the lawbreaking. Securely in power, president of justiceed a path that may have succeeded if it were not for the important discovery of the tension. Let me conclude, the idea of separation of power is that each france could Check Another branch of the latter abused his power. Watergate Constitutional Congress obligations to check the executives by providing the means that insurance event that investigation take place. The special capital independence and integrity act take an important step in this direction. Indeed, they will likely enhance power because they will reassure the public that the office of the executive branch, including the president himself, are not above the law. Thank you. Thank you mr. Chairman. Senator feinstein, members of the committee, it is an honor to be back before you today. Rather the end of rehash my written statement i would take the time to make three points that hope to crystallize the areas of disagreement among the witnesses. First with regard to the Current Special counsel regulation, forgive me if i refer to it as part 600 comment is worth highlighting what i see as the major ways in which it is far less intrusive visavis the executive power than that which was true about the independent counsel statute. First the power of appointment belongs to the attorney general or in this case the acting attorney general in cases in which there can use. There is no traditional role in of the statute. Second, if there are concerns about the scope of the investigation, if the special counsel seeks to enlarge his jurisdiction, the attorney aboutl is concerned whether the investigation is going to far field, the attorney general makes a decision about any questions of jurisdictional scope. That is not subject to judicial review. Senator feinstein already pointed out the regulation specifically provides that is the attorney general lord this case the active attorney general makes the removal decision. Again in contrast to three judges. As was true under the independent counsel statute. It the largest concern folks runawaythe specter of prosecution, which many think they saw on the 1990s, there is really no meaningful chance of that under part 600 as it is currently drafted. With regards to the two bills, would like to underscore how modest ar against that backdrop. There was actually a lawsuit of specialbehalf counsel cox seeking to enforce the then inplace regulation and contest whether he was lawfully removed. That was the clara torry judgment and injunction. Thats rolled indeed thengeneral bork had violated it by removing special counsel cox. A method inready place for a special counsel or someone to sue on his behalf to challenge level removal. Both bills simply guarantee that review and improve it by invoking a threejudge District Court and automatic right of appeal. With regard to the Supreme Court jurisprudence, i gather it is perhaps the principal point of departure between the four of us. The claim is unsupported by the record. In contrast to the widely held view that aspect of the statute were simply a bad idea. We too often conflate those who think these statutes were bad policy with those who assume they must therefore be unconstitutional. I disagree with my colleague and mentor professor amar that there were six votes to overrule morrison. Get not sure how you even to three. And even if there were support, let me go back to my points. These bills are so much less intrusive. The real concern is with the relation itself. I am hard pressed to see why these would be the vehicle through which the Current Court would seek to revisit prior precedent even that all the bills do is guarantee a right to judicial review that may already exist. In closing, let me turn back to Justice Scalia has defense. I think his dissent is rightly celebrated for its style, its passion, and for how well written it is. At that does not mean he is right. Instead i think i would use a quote to point out the importance of this whole enterprise. Justice scalia a closed by reminding everyone of the test of article 30 of the massachusetts constitution of 1780 and the maxim that ours is a government of law and not men. It seems to me the special counsel is important if limited manifestation of that important visible and that ensuring a mechanism for protecting the special counsel from wrongful termination is, at a time when we very much needed, simply further to that laudable, desirable, and hopefully bipartisan goal. Thank you mr. Chairman ill look forward to your questions. Thank you. Grassley, drinking member feinstein, indistinguishable as of the committee, thank you for inviting me to testify before you today. My analysis today is necessarily tentative because the removal issue has not been consistent. There is a curious habit of abandoning reasoning whatever confronting a new case. [indiscernible] the moors versus lewis in case explicitly threw overboard the reasoning of the humphreys executor case. In 2010, the Free Enterprise fund case did not imply the functional analysis and forced. All four of those cases remain good law but not necessarily any of the reasoning. With such judicial variability i balk in making definition of predictions. Bills, 1735 plus proposed transfer of Removal Authority from the executive to the Judicial Branch seems unconstitutional if the court adheres to the Free Enterprise holding. 1735, a special counsel would enjoy statutory tenure protection unless and until the attorney general article three it should bece removed under one of the statutory grounds for removal. That imposes two levels of statutory tenure protection between the special counsel and the president. Under Free Enterprise fund, such multilevel protection is unconstitutional. Indeed, the removal system under 1735 differs from Free Enterprise fund presenting additional problems that it even more clearly against maintaining its constitutionality. I believe it is erected toward a legitimate policy goal. Testing the legality of a removing order. Without the brinksmanship of eight destructive removal order of an certain legality such as the one issued in the socalled saturday night massacre. I think the proposed legislation could be modified so as to be constitutional if it were to require that any order of amoval not take effect for time such as 14 days, to bar the time from the other proposed legislation. To preserve the executive prerogative, legislation should also provide that the special Counsel Authority would be temperate way suspended during that time for temporarily suspended during that time. That would give time for the court to grant any appropriate. Quitable relief legislation requiring such a process would be well within the mainstream of existing president s and broadly consistent with the existing administrative law. The mostect u. S. 1741, constitutionally troubling aspect is the combined effect of sections twothe and twod would together change the regulatory tenure currently afforded to a single known officer. There are no clear precedents supporting such a retroactive an existingnure of officer. In my written statement i cover certain and analogous president s that suggest such might be unconstitutional. Furthermore, the selectivity of the section, the targeting of a single official, makes the provision looked more like an unconstitutional attempt to circumvent the power to control appointments for particular offices. I recommend the retroactive provision be deleted or if it is maintained, subsection b be made separately severable in the event the court whole section twoe, the retroactivity provision unconstitutional, the severability clause would allow the bills procedures to be used for other legal challenges such as the challenges heard in the case mentioned by my colleague here from texas. Unless point. The mandatory reinstatement three is section 2d beyond the remedy allowed in prior cases and even beyond the remedy authorized in the independent counsel act. I recommend that section be the independent counsel act and give power to the court to grant reinstatement or other appropriate relief. Thank you for your time and attention. Thank you again for the invitation to speak. We will have a fiveminute round for questioning. Professor duffy and professor amar. As you know, both bills codify regulations on fourcause removal and prevent judicial review. In your opinion, are either the steps necessary for congress to ensure special counsel investigation is conducted properly or congresses oversight and Impeachment Congress enough . I will start with you. I believe that the change statutoryatory to tenure is not needed if you are asking the policy question of whether the regulatory tenure would be sufficient to ensure a degree of independence for the special counsel to conduct the investigation. That regulatory tenure i think is likely to be respected by the department of justice officials except and to the extent they begin to see difficulties or conflicts of interest or other causes that might require removal and that information is likely to be closely guarded inside the department of justice because it will deal with the operation of the investigation, which is matters not really public, not known to members of the public. I am a fan of congressional oversight and i think it is actually a better mousetrap and trying to make a statute that removal the good cause standard. One thing that makes a good cause removal constitutional at legalt is from a formal point of view it could be rescinded by the executive branch. So the executives choosing it by itself is part of what makes Robert Mueller technically and inferior officer but if you put it in a statute, how is he actually constitutionally. Nferior officers can be fired at will and yet this person cant be. He is supposed to be in fear. Case, you had morrison investigating one person who is out of office, at olson. Maybe that person was in fear. Here you have someone investigating the president of the United States for possible abstraction of justice firing the fbi director as well as other people possibly involved in a Major National scandal involving alleged russian tampering at n a president ial election. It is hard to see if that person is in any way inferior if you requiredstatutorily these limits on removal. Again, cabinet officers are superior. The principal officers. And they can be actually fired at will. And, there is hard and power that interacts with all of this element. Important congressional oversight by this committee or Standing Committee of some sort i think is the far preferable way to go. Question thather is a little but out of the purview of this hearing but very central to oversight responsibilities of this committee that i would like to actually a few good comment on. Each or all of you. To recent press reports, Deputy Attorney general rosenstein has been interviewed as a factwitness by special counsel muellers office. He reportedly provided them a copy of the president s initial memo justifying the removal of director james comey and was questioned about. A you believe that poses conflict of interest and should Deputy Attorney general rosenstein consult the ethics officials at the department of justice about the issue . If you could comment i would like to have your opinion. I have not investigated that sufficiently to give you actually a good answer, senator. And mr. Chairman. Is at the same for all of you . Ok. Then let me move on. Something that is very bothersome to this committee. I want to bring that up. S173 five requires the attorney general acting attorney general to submit his removal decisions findingeejudge panel that the removal of the special [indiscernible] on the other hand permits the special counsel himself to seek removal decision in your opinion is the approach taken by 173541741 preferable from a constitutional perspective . I address that a bit in my written testimony. I think it would be safer to take the approach where the initiating complainant is the special counsel. Let me illustrate that. Imagine a case where the special counsel does not even contest that the special counsel has cause for removal. I do not know what is gained by having the attorney general gone through the process i think it is not necessarily a violation of article three but i think it makes a lot more sense of the attorney general notify the special counsel that he or she believes there are grounds for the removal and if the special counsel objects have him or her be the one that initiates the league indication under both bills. Bothe litigation under bills. Impactke the symbolical but i am not sure it matters in practice. Imagine the president or attorney general or acting attorney general fired the special counsel without going 1735. H the court under then, the special counsel would bring a case in front of the court anyway saying, you violated this law. Even if the court had concerns about whether the law was constitutional, we would still heard the case. It would hear the case because there is an allegation of fourcause removal provision. Judiciald you will get review whichever bill you use but it is true that the provision in 1735 is a little bit more unusual, harder to predict how the court will react. , professional amar do you have anything to professor amar do you have anything to add . Since were talking about courts getting involved, the solicitor of the the solicitor general presumably would be representing the ranch. I could be wrong but i think they confirmed someone to that who is i believe a former law clerk to justice earlier. He might very well have a view about unconstitutionality and if that were to pass, the senate might need to retain its own counsel and be involved in that and now you are putting the whole thing in the lap of the judiciary rather the end actually taking control of the matter yourself, which you would be able to do actually with a robust oversight process where you would be the ones and the cameras of the world would be focused on your deliberations about whether this steak to high heaven or not. Ideally you would do it in a bipartisan way, in a manner somewhat akin to the Senate Ethics committee where you have equal numbers of both parties ad i think that would just be much better way of oversight since watergate has been invoked on a bunch of occasions, remember and watergate, in realtime, that the judges did not reinstate archibald cox. Was not sacked. It was politics and congressional oversight that worked. It worked better. Feinstein now i am really confused. So let me try to sort this out. That the twoledge special counsel bills are narrower than the independent counsel statute . Could we go yes or no down the line . Certainly not 173 five. Senator feinstein i am sorry, professor. Thank you. Certainly not 1735 which requires on its face that the executive branch go through the judiciary in order to get permission to remove the independent counsel statute. Did not have that. Instead the attorney general issued the removal. In 1735, Graham Booker white house i think that is what was mentioned. It is the only respected which i think either of these bills is an intrusion. I mentioned in my testimony had think there were three critical substantive ways in which it is less intrusive. The attorney general has control over the appointment, scope of appointment. I think it is much more narrower. Justice scalia wrote in his dissent 1741 is clearly narrower than the independent counsel statute. Yes, tell us. View is alsoy narrower because as i mentioned earlier, do not think these judicial review decisions as a practical matter will make much difference. You believe it is constitutional question mark yes, both are constitutional. Both areeral considerably. There is the technical issues that professional professor duffy raised but those could be tweaked. In general it is narrower but still unconstitutional. I think both in my view and in the statute on the books is on constitutional . The statute lacks senator, in because lapsed thenattorney general janet reno came before the senate of the United States and if i can just tell you what she told the body because it is actually pretty important, and it is in a note in my testimony. Recently supported the ethics in Government Act in 1978 and she came reluctantly to the position and this is very much where i am saying it is unconstitutional, here is what she testified, after working with the active have come to believe after much reflection and with great that the act is structurally flawed and these flaws cannot be corrected within our constitutional framework. The council is vested with the full gamut of powers but with has not been confirmed by the senate. Accountability is no small matter. It goes to the heart of our constitutional scheme. Our founders believed the went to and who were prosecute would be vested with the people. Is all a quoteis here i am paraphrasing Justice Scalias decision whether were talking about ever prosecuted or under prosecuting the blame can be assigned to someone who can be politically punished. That was her testimony of that saying it was flagrantly unconstitutional and provision. Set senator feinstein i am not an attorney so i will put it in nonattorney language. Which bill do you believe is the soundest on the basis of constitutionality . I will go down the row with this. And, being able to carry out its purpose. I think neither. I think they would both the and validated. I offer a different way of skinning the cap. Senator feinstein lets go down the line because i dont want my time to run up. I think they are equivalent. If i had to choose one i would choose the tillis kunze one because it avoids this judicial issue that people have mentioned but i think they would both easily be upheld by the Supreme Court. I agree. Slightlly propose a tweak to Graham Booker that would afford the article three program avoid the article three problem. I,you, like professional what is preferable. Counselhe special remained in place while his removal is challenged or had this time where these special counsel is removed and it is unclear what is happening. So i have a policy preference for Graham Booker. The one unique constitutional issue it raises could easily be saved by drafting. I think both are unconstitutional but for Different Reasons and the sense the 1735 bill has this problem of going to the judiciary to see permission. I think the 1741 bill has a problem of retroactively changing the tenure of an existing officer. Since you are targeting the specific investigation, you cannot really modify the 1741 bill without exempting or having it be an applicable to the Current Special counsel mueller which is i think the overall thrust of the committees bills. Senator feinstein again, im not a lawyer but if i hear you correctly you are saying, currently there is no protection. That the special counsel cannot be fired. There is ae saying degree of unconstitutionality to the two bills but the graham is that the bill that is most likely to survive a constitutional test in your view . No. The tillis kunze one is more likely. Senator fisa the tillis cans. Could we go down professor . Hat is where this is with me we did talk about my reasons for the vote count but i think neither one will survive the Supreme Court challenge. With your own counsel. We will have nothing. The objection of 1735 is the injection in my testimony. Could be fixed easily. Just have the special counsel be the one who initiates the lawsuit as opposed to the attorney general so i actually think it tweaked, they have the same chance because it is an up or down question about morrison versus olson. Tillisink 1741, the kunze bill, probably many of its procedures could be might be i think are constitutional under morrison versus olson. Strikert might likely down the retroactive provision but then it would go forward with the procedural provisions about hearing the challenges. There will be other challenges to any removal order, so that would procedurally ui. Now i am totally confused. [laughter] thank you. Thank you each of you for being him. This is one of the most overlooked issues in our system of government. The question of separation of powers. Anytime we tinker with the division of power between these three branches of government, we do grave damage to the system. This damage is not abstract. Far from being an injury that is solely institutional, this type of injury i believe has profound consequences for individual liberty. Ultimately it is what separation of power is about. Thrilledhy we are so to hear professional of mars [indiscernible] if we had access to angels, we would not need all these rules. But we are not angels. We do not have access to angels to govern over us so we have rules. When you consolidate in the same person or group of people the power to make and enforce laws, it inevitably ends in tyranny. It is the definition of tyranny. It is what tyranny is. Or the same people making the laws are enforcing them, you have a big problem. One of the Big Questions i have specifically regarding this set of legislative proposals would be, what counts as good cause . On what basis can someone be removed . Both of these bill say a special counsel is permitted to be misconduct,d on dereliction of duty, conflict of interest, or other good cause including violation of the policies of department of justice but not limited to those things. As a lawyer myself, i have a pretty good idea of what incapacity is. That is a judiciary manageable standard. We know how we would go about deciding what that would mean in court. Conflict of interest, there, too. But good cause . What does that mean . Could good cause of amount to what happens when the attorney case. Says drop this could it mean there is good cause when the attorney general says, dont issue that subpoena and the subpoena is issued anyway question mark what is your reading of that . Thank you senator. Since you mentioned the founders, George Washington on march 13, 1793, he writes William Rolle and for anthe rally to enter indictment. John adams did that. Prosecutors what to do it not do. So did thomas jefferson, one involving William Duane and another involving and greenlee. I do believe when the president end thelawful order to discretion of the lowlevel ,fficial in the executive ranch it defines the lawful order as good cause but the statutes dont say that. They say, well if you violate regulations, that is good cause but they do not specify that when two options are lawful and the president direct you to do one end and said you do the other, the statutes are not at all clear that is actually good cause and i think that raises a serious constitutional problem because of that is not good cause than washington did was unconstitutional, problematic, adams, jefferson, and so the president so we can easily think of if hes fired, in order to obstruct justice, thats not good cause. If hes fired because hes shot work and not doing anything, that would be good cause. If its met middle, at that oint, we would have to trust the court to evaluate the reasons were given and make a adjustment accordingly. Briefly, i e to ask think its worth stressing in this context, the ambiguity of proexecutive branch, right . Because the ambiguity of the phrase i think leads to the courts would t interpret good cause fairly allow usly to actually the attorney general or the actions of the attorney general to come up with plausible, not grounds. To me, that is a feature of a good causable provision that gives broader discretion to the executive branch than if the regulation simply stopped after misconduct, of duty, et cetera. Okay. My time has expired. Hope to have a chance to a low up on this in subsequent round. Lehen. Ator thank you very much, gentlemen, for having this hearing. We were just going through the of the work of special counsel and others when senate. The ive heard a lot of discussion since then. Any of us have questioned the yearslong ind of a of ussion of the meandering president clinton, the existence of the Sexual Conduct he did not show when he was at baylor, happened. But theres no doubt that the independent statute didnt violent the separation of power. Olsens 71 decision made that clear. Ow, i think that the two bills nder discussion today introduced by senators graham and others are even more modest. In your view, what would be the true threat to the rule of law . If one of these bills is enacted in the law and, econdly, if the president disregarded the existing justice epartment regulations to fire the special counsel in order to russian a investigation. If the president of these billsne was enacted and the president ignored, wed be back to watergate, where the there of issues here, and one is, the president or any evel of executive branch of presidency, basically because of self dealing in the executive branch. Inherent in our system to congresss and its obligation to ensure that this self dealing is limited as much as possible. By the way, that peacock dome was mentioned. Special another prosecutor appointed i think in 1951 during the truman man named ion, a newbald morris. Appointed to investigate corruption in the i. R. S. And the Justice Department. Fired by mcgraph, the attorney general, at trumans equest, and the investigation was never completed as a result. So thats the thing that we have to worry about. Hats what motivated the independent counsels statute. If the independent counsel unnecessary produce investigations, thats not a problem here, because the the ney general retains power to make the appointment in the first place. Me ask you another way. If the president or the white undercut or think they could undercut or cut back the counsel, the special noted that was in the new york times, the Russian Investigation attempted undermine the special counsels budget. Of the irman Appropriations Committee and we have congresses, budget and powers, can s Congress Play a role in ensuring the president or attorney general cannot undercut or for the funding special council . We do not have the power . You do have the power. You do have the power. Under existing regulations, the attorney general determines the udget of the special council and could request zero dollars for the special council if thats what he wants. In and could step appropriate money for the counsel. That is within congresss power. He president would be required to spend his. Incidentally, we talked about the special counsel and talking about the separation of powers know theres been disagreement here and i that. Ate suppose we passed it as it were, and the current regulations that the special counsel omehow didnt exist, obstruction of justice is always a crime, no matter what, am i correct . That, ou all agree with am i correct . Mrvrs vl ashg professor vl, is it a basic protection for the special counsel, if the him to t fired russianly influence the investigation, doesnt that raise a question of obstruction justice . I think it does, senator leahy, and i think the existing regulation already goes a fairly long way toward protecting the pecial counsels ability to investigate that very offense. As i mentioned, i think its possible that the existing would be sufficient for the special counsel to try to enforce if he were removed so, you know,ause the real questions here i think kin to the statute where congress has created the entire structure. The Justice Department has voluntarily created the structure. The question is how best to ensure that its honored and that its not abused to high crimes by those connected to the administration. And professor, you had said can be a judge in his own case. What does that say about a pardon ts ability to himself . Such power. And long on the record discussing that. The ince you mentioned pardon, you see and it onnects to senator lees question. Suppose he says im pardoning this person and that person. Hey happened to be in my administration. They happen to be my former Campaign Head or friends or elatives, and im doing it so that the country can move on. Were spending too much money. Are this is distracting from other things. The accountability in the power there is a pardon so the accountability in the end has to be impeachment and press Senate Oversight but i dont think judges can and judges o that cant quite decide whether its good cause or not. The pardon power means at the day the president can choose not to prosecute pot or, you n colorado know, other folks. Were getting a bit off my question. Question was he cant pardon himself. Thank you very much. [laughter] i just want to make sure we the answer. As to my other questions and statements for the record. The record will stay open for you might get questions in writing and the statement will be in the record. Republicans down this week. Graham, corn, tillis graham. Enator thank you for having the hearing. Lets remind ourselves why were here. Did all of you agree attorney general sessions made the right decision to recuse himself from Russian Investigation because he was part of the campaign . I have no id have to look through the facts of that and reports read press which im not sure are accurate. So far as i understand the folks, yes. Yes. So far as i understand the facts, it was sensible. Yeah, i think the attorney call l made the right because its going to be pretty difficult to have the attorney general investigate the campaign which he was intrinsically involved so thats the start of this process. So once the attorney general steps aside, youve got the Deputy Attorney general. He could take at his place and continue if hes not conflicted. Everybody . S from yes. Yes. Then we had a statement by he president and some actions by the president that unnerved he Deputy Attorney general and appointed special counsel. Do yall agree with that . Yes. Yes. Got here. W we we got here because sessions this, i ant do shouldnt do this. Rosenstein says, i will do this, some things happened between president and comey where the we need said, well, some new person, a special counsel, to look at this. Got here. E all agree with that . Yes. What were trying to do is forward and move hold mr. Muller accountable, but lso give him protection to do his job. So do yall agree that the president himself cannot fire mueller . If you read even friend d by our mutual in the Washington Post who helped write the regulations, he not altogether clear. Its not clear that the egulations themselves actually apply to the president as opposed to merely figures in the department of justice. The you think he has Inherent Authority to fire this guy . He may very claim that and katial and i think its not settled either way. You, professor . I believe that a court would einstate the special counsel under constitutional principles but do i agree that scholars and would be uncertain. Professor vladeck. That the point out Supreme Court has held in multiple times that the toto is e branch in promulgated until it properly rescinds them. I agree english, you dont think he can . [laughter] i try to avoid english possible. I know, i know. Youre doing good. Mr. Duffy. Think he does have the de facto power because he could order his Representatives Department of justice to repeal the regulations. Right, that would be a twostep process. Yeah, it would be a twostep process. People u could fire until he finds the acting attorney general that would fire the special counsel. Do iswhat were trying to make sure that something out of bounds doesnt happen and mr. Wither can proceed forward some confidence. Is that a thing worth the ongress looking at, given the circumstances we have . Do you think were doing the right thing by trying to look at that . I think you are. In part, because i think that providing a process, an orderly review, my judicial actually strengthen president ial power and make the president if there is that something that is legitimately good cause and the president is good cause, the president can issue an order and not havebrinksmanship, saturday night massacre. So heres what im trying to night s a saturday massacre and an up upheaval in the country that would be hard country to get over. I want the president to know theres policies in place and balances that were here long before he got here and ill be there long after hes gone. There are two ways of doing this. Our approach, before the special terminated, we ask a Judicial Panel to evaluate the reason given by either the acting attorney general. The other solution is after hes terminated, to reinstate. Vladeck, you said you think our approach is better because investigation to move forward, less upheaval. Do you still stand by that . Do. I would just propose the tweak i mentioned in the written statement to have the special sel i think thats actually a suggestion. Ms. Posne r, you said both of constitutional. Do you agree that keeping the special counsel in the game in terms of investigation provides continuity . Yes, i agree, and i prefer Graham Booker bill on policy grounds for that reason. Im a , to the public, republican. I want to make sure mr. Mueller does his job if he gets off he does something wrong, there will be a way to look at what hes doing. The law either, but i just want everybody in america to know that hes going of o his job without fear reprisal. Hes going to do his job, protect it as much as we can by a legal process. This is not about President Trump. This is about any president at any time in the future. Being able to be held accountable as an individual, nothing more important to me than to say, without hesitation, that including n america, the president , can go is an r scrutiny when theres allegation that they may have done something wrong, and thats what this is all about. Senator white house. Thank you very much, chairman. Professor, welcome. You say in your written quoting here, im the power to pardon subsumes the esser power to decline prosecution for any number of reasons. Can this lesser power you the ibe be regularized by resident into policy so that the folks who are actually enforcing the laws have a from the irection president as to that power that lesser power to prosecution . Yes, and its typically subject to revision, so, for example, president obama could basically say, were not going violent, people who arguably, federal laws in of ma o on possession rijuana. So not going to prosecute, daca kids. , the some of that is civil but, yes. Ent the power to choose to equally executive in either case . Yes, but with criminal, it ineracts with a pardon power the way it doesnt on the civil you to put otherwise can have, for example, private prosecution on the civil side, like, andlaws and the you cant have that on the criminal side. O theres more power of nonprosecution on the criminal side. So first of all, professor posner, welcome. Do i understand that youre the son of judge posner . I am, yes. Let me tell you, i think its a great loss for the judiciary he retired. He had a very distinguished one of the historic judges. Pass on my compliment. I will. Three questions that im not going to ask you all to right now. As the chairman has said, you on the ability to reflect these things and then answer as questions for the record, but reflect on three things. In first is its been said this hearing that the president ant order an official to do something illegal. Does that mean that it is unlawful for the president to rder an official to do something illegal and if it is unlawful to order an official to something illegal, is there a remedy, a legal remedy for that . And, obviously, the context here ould be that the firing of the special prosecutor would, in fact, be an act of an justice . On of so thats question 1. Question 2. Certain amount of role of grand juries. I dont think anybodys on imony here has touched the role of grand juries, but open is at least an question of whether the grand jury is an instrument of the rosecutor or whether the prosecutor is the instrument of the grand jury. As i understand it, once a grand sitting, the grand jury has the ability to tell a prosecutor to go pound sand, and theyre not going to give them subpoenas. They have the ability to demand witnesses even if the prosecutor doesnt want to produce those subpoenas and witnesses. Attorneys manual describes the grand jury as an independent body of government. How does the prosecutor, in his role, potentially as the a grand jury, engage separation of powers question . Its a little bit of an wrinkle i think we should not overlook. Were doing a great job in this overlookinght now of the constitutional role of injuries and grand juries. Our founding fathers, i think, stunned and horrified, that puts at least a wrinkle into this analysis. Once you have a prosecutor who now the servant or the instrument of a grand jury, does affect in any way the an ity of the purity of executive authority to terminate . Amendment,is the 25th section 4, which says that the majority ofnt and a the principal officers of the executive departments can remove all executive powers from the president. Temporarily east him from office, so if he Vice President and a majority of the principal officers him of the executive department have the power to from the powers it not be at ld least logical to presume that a consisting of the Vice President and a majority of of the cipal officers executive department, have to firing of the special counsel. Closer to the constitutional scheme if you avoided the judiciary entirely that that same panel that is already in place 25th amendment had a voice in this decision. And that the lesser power to say to the president , hold off there, you cant fire this guy hes investigating you, is subsumd within the greater power f removing all powers from the chief executive. Ed within the power of removing all powers from the chief executive. Complicated questions and i look forward to your and i es in due course appreciate the expertise of this panel and i thank the chairman. Tillis. Or thank you, mr. Chair. Thank you, gentlemen, for being here. I think in some of the opening comments, since im one of the sponsors of the bill in question today that i talk about my motivation. O professor moore, you and i could probably have a beer together but i doubt wed see yetoeye on many ideological issues. But i do have to go back and explain what my motivation for was. Ll at the that the that time back in august, we had a lot of things that were going efore this committee over the past year or so. Weve had a significant degradation, i believe, in the eputation of our fbi and department of justice over the last eight years where a lot of people were called into question f whats going on and what i consider to be the greatest Law Enforcement entity thats ever existed. Degrading in the public consciousness. So my motivation for this bill you said ffy, something i think is important because we have the retroactive date. Something we decided would have to come out if this bill moves forward and simply say its applicable to anybody in role after this bill is enacted. But my motivation was actually remove the distraction and to eliminate what i thought was a spiralling of the narrative out based in any not factual anything in the say, this hould president intended to remove the special counsel. Something that just spun up through social media. Anything else, i dont know of ny action that the president took that people could say that he was moving to remove the special counsel. Get something out there to discuss that maybe there is an opportunity for us some level of a check and its e in place very difficult to do that bh youre in the majority. Enerally speaking, people advocate for these bills when theyre not in the majority. Nd particularly, when your president is of the same party, and i thought it was important for the purposes of other should bring e before this congress, for somebody to step out and do it difficult, not just when its easy. Ut professor moore, when you may have made public statements against this president s election, i was campaigning for him. Generally support his policies, and i think this resident will do well as the commander in chief, but theres a role that we have to play to just kind of lower the the rature and let processes play out, and that was my primary motivation for filing to bill and id like believe there were members on the other side of the aisle, if hey were in my position, if this were a president clinton and there would most likely been some sort of because tion going on of the meddling of the russians in the election, and i dont think anybody disputes that, have had the d courage and the conviction in our role in this process to put and withstand he public outcry in some cases from my side and supporting this president. Support this president completely. I also think were not here to president s wings but create sort of a check on any future president. Ow, i want to go to you, mr. Duffy. I do believe that the retroactive provision is something that makes sense to and it would make this consistent i think with enator grahams and senator bookers bill. One thing we pointed out was the rulesss codifying doj and i ed in the wonder if we have to say you to follow whatever rules that were in place at the time the action took place. In other words, not codifying posterity the rules that exist today but as things change, how do you think that makes our proposal better or worse . Well, theres two alternatives to that. That they uld say have to be that they have to follow their own rules that are in place at the time of firing actually agreed with agree with professor the ck that thats already law because the Supreme Court says agencies must follow the rules but that would be kind of because you could then repeal the rules so i think what you would say is that it has to existed atrules that the time of appointment. And that, again, has a certain etroactive effect which ive discussed in my written statement and i think is constitutionally troubling. Will say that the procedures actually get fast judicial review, which are sort of shared bills, slightly different ones, i think are a good idea and would bring some of certainty to the process, and the retroactivity provision, you just make that severable, because there would be other claims, like the ones that were the firing of er archibold cox. Should be adjudicated altogether and done so rapidly as suggested in your bill. Thank you. My time is up. We are going to submit. Thank you all for your opening statements. Are going to submit questions for the record and i appreciate you all being here and weighing in on this. Mr. Chair. You. Nk you, all of professor posner, in your written testimony, you describe one of the greatest constitutional crisis in americas history since the war, when we discuss the history of watergate, i think he most concerning part of it for Many Americans is the government officials believing law, not above the accountable from unlawful activity. The other part of the prevention of abuse of president ial power. I would say president ial campaigns but the significantln with significantl y worse in the exception of justice it is hard to exaggerate how significant that was it other president s may have hesitated about appointing special counsel in particular cases. As i mentioned truman fired a special prosecutor, but the wise and to the extent nixon covered up these crimes were unprecedented. Abouttice scalia talked how there would be political checks on a president in such a case you point out the shortcomings of this in your written testimony. That nixon did not face another election. Can you talk about how the is intendedcounsel to rein in those types of abuses . Impeachment can occur but this is back that is very difficult. In nixons case, he did not face another election. The whole point of medical espionage during an Election Campaign is spying on your opponents say you can get an advantage. If you succeed, the voters cannot hold you to account. They do not know they have been deceived. Would try to influence his investigations. Thank you. Maybe, professor will want to chime in. Y daughter will be angry in your testimony, you talked about how the special counsel regulations go a long way toward providing important checks. I asked Deputy Attorney general Rod Rosenstein how these relations work. These regulations work. The removal provision, the special counsel, although his jurisdiction is controlled by the attorney general, he can only be removed and the reasons set out. That is the check that we are here because the question is, how do we ensure that check is more than just a paragraph. Ok. Abigail. To that is on the official record now. She is trying to decide whether she is whether she wants to be a lawyer or comedian. I have Center Pictures of college classmates who decided to pursue comedy and did not do well. Wantr parents tend to their children to go to law school rather than be comedians. I know simpson frankens i know senator frankens comment. It is a big difference between having something in a regulation where the executive branch has chosen to limit itself and when you try to put it in a statute, that raises some constitutional concerns. It is going to have to be defended by the solicitor general. He is not going to survive a president ial veto so it may be a big waste of time. You all on this and the world greatest alliterative assembly can monitor president s when they misbehave and you can decide with good sauce with good cause. Not some judge. I would say if you did that in a bipartisan way, the entire country would stand up and applaud. Thank you. Senator kennedy. Senator kennedy thank you, mr. Chairman. You guys remind me so much of law school. Why i sat on the back row. Listened with a lot of interest. Law. Ll are experts on the i am assuming you have opinions about the efficacy of the implementation and execution. What kind of job do you think congress has done so far in investigating the alleged activity of russia in our election . In my written testimony, i suggested that although technically the house of representatives is a body in t it is very partisan, because unlike the senate. Argued that the senate is the place where america has to come together. Only to use away from her primary would have to be worried about their base. What kind of job do you think congress has done. The senate is better structured than a house. It be better structured if you create the mechanisms that are built into the oversight. A m a tough greater so maybe b. If you work hard, then maybe an a. Just senator kennedy bang system wereudicial essential. They were come from entry, they helped each other and that is why the coverup was uncovered. We giving grades, i would give an incomplete. The professor mentions watergate. That is a helpful example how there were moments where the separation of parties is more powerful is less powerful than the separation of powers and im not sure we are there yet. I have concerns about statements that the chairman of house Intelligence Committee has made related to this investigation. The history books are written after the fact, senator. Theres still time, but so far, pretty incomplete. Professor . The most important thing this body should look into is any allegation that russian activist or nonstate activist, could hack the voting machine. That would undermine the credibility of the entirety of the election. Russiani think that all the als that seem to be made that perhaps as ads were purchased by other people, i think those politically are just less important than the question of where did the machines count the right votes . Voters could be deceived if an ad were purchased on facebook. I think it is hard to believe that after a Lengthy Campaign where hundreds of millions of dollars were spent, and the American People got to see the live debates between the two president ial candidates that they were deceived about the differences between those two candidates. The voting machines, that is a primary importance. It seems to me, there are a multitude of issues but there are two main ones and that is worst, to asked that is ,irst, to what extent if any did russia try to interfere in our electoral process . The second issue is did anyone conspire with russia in doing that . The special counsel looking at the second issue. But i see congresss obligation is to look at the first issue. Do you think we have looked we have used all of our powers and looking at the first issue daca have we been issue . Or have we been too deferential . I think both issues are worth looking into. I agree. , the senategate era and the house looked into the conspiracy issues. Of thes the key part series of events that led to nixons resignation. I ask, until either house or committees thereof are subpoenas are subpoenaing witnesses and exercising their full enforcement oversight powers, i think there is more to be done. I agree you have the power to look into both issues and subpoena people. Isope the priority of issue the integrity of the voting counts, because that is something that goes beyond this election or this campaign. It goes to all future if i understand what you are saying, and till we stop acting like a bunch of weenies and subpoena people, then we are not going to get what we need. That seems to be historical. [laughter] senator blumenthal . Sen. Blumenthal thank you, mr. Chairman. There are two questions, the russian interference in our election which has been established by the Intelligence Community john doubt. Community beyond doubt. And then potential conspiracy involving the trumpestablished e campaign, but there is a third question now under investigation by the special counsel which is whether or not the president of the or any official under his supervision is obstructing justice. Whether the president is interfering with the lawful enforcement of the laws of the United States which would be a violation of criminal law. Niceties e legal put aside the legal niceties, the Legal Counsel and the president right now are on a collision course. We are niceties put aside the legal headed towaa constitutional confrontation. Confrontation between the special counsel and the president which is evidenced by the threats that the president has made against the special counsel, the comments that he made to the Russian Foreign minister about feeling relieved after firing comey because he was free of the russian thing. The air force one statement that he dictated as the explanation to begin by his son, donald for the40 june 19 june 9 meeting involving his son and soninlaw and Campaign Manager with Russian Foreign agents. A slew of evidence now under investigation and more that cannot be disclosed here involving potential obstructions of justice. The question is, how do we preserve the rule of law . How do we make sure that the president of the United States is not above the law which was also the question in watergate. That is an enforcement question. The good cause a standard which is now in the regulation and which would be the legislation my colleagues and i have drafted , it has to be enforced by someone. , itally, in our democracy is the courts that enforce the law. Professor oint your point, professor, that oversight is a good thing but congress does not enforce the law, and it has some supervisory. Urisdiction over justice this committee has that oversight responsibility. That is why we are conducting our own investigation. A grand jury is an arm of the court that provides a special counsel with some protection, but this constitutional confrontation that looms very if thean be avoided only law is enforced by a court. I see morrison is firmly upholding that reasoning by a seven to one majority. I recognize the eloquence of Justice Scalias dissent but it is a dissent. I recognize professor recognize, professor duffy, the court may not have a perfect line of reasoning because it is complex and because it is political. What i would like to know, is how you would avoid this constitutional confrontation without, the courts involvement . The first point. Mueller,you he fires mila gets reinstated. Mueller gets reinstatement unless the amick and people are Senate Unless the unless the American People are outraged, less the senate Richard Nixon had the Lawful Authority to pardon John Mitchell and all the senate otho because that pardon power is so fast, at the end of the day, at the end of day what at the end of the day what prevented that, the senate that said we are not going to let that stand. You have to be part of that process. After there is a finding of fact, after the investigation concludes, after the special counsel is permitted to do his work about whether or not it was a violation law, and then perhaps only impeachment is the remedy. You are talking about the remedy. The special counsel function of factfinding and investigation. The council is a fact finder and investigation. The fear that our proposal is designed to address is that factfinding will be aborted. It will because short, it will be ended unlawfully and that the American People will never know what happened. The president does have the pardon power. I grant you, it is unlimited apparently. We can talk about the possible limits that may apply, but ultimately an investigator, and enforcement officer which i was uses the grand jury to make findings of facts. And to possibly disclose those remedies, may lead to whatever those remedies are. Remedies, whatever those remedies[no audi] i hesitate to cut short any of the distinguished witnesses that we have before us it i would never do so in their classrooms. Before us. I would never do so in their classrooms. Your indulgence. Caspar weinberger before they were findings of facts so the pardoning power looms over all of us. I would say the impeachment power is the ultimate power and you get to try cases of impeachment once the house impeaches. Mixing couldve pardoned his henchmen, he may have destined next and couldve pardoned his henchmen. He may have been able to pardon himself. I dont know why we are so afraid of the courts. I want to apologize to senator kunz, i skipped the order. Senator blumenthal, you not only did you get your first, got to go over two minutes. Senator kunz . A respected panel of academics who have done important work. I want to start with a general question, more servers is also. Did the court get it right . Was clearlynk it wrongly decided on multiple grounds. Counts. Ds on good we talk about counting votes and i count them differently and so four times Justice Thomas has in four different opinions cited this philia defense including last term and i see Justice Gorsuch as being very much of the same view, although he has not been on the court so long but on the basis of everything he says and the way he approaches things. Friend, centrally is no longer here, i would defer to him on justice alito. Actuallytice roberts twice decided that scalia dissent was strong approval with strong approval. Here is what elena kagan said and justices on the Supreme Court dont usually sort of talk very publicly, but this is what she said at stanford and public remarks in 2015 the morrison dissent was one of the greatest the sense ever written and every year gets better. Now we have Justice Kennedy who is a part of the majority and 75 is ago this year the Supreme Court in a landmark decision in a case called barnett which is one of the great cases of american liberty oxley said he cannot be forced to salute the flag essays of stuff that is going on today. That overturned the decision which was a to one, just eight to 13 years before eight to one three years before. The court had not said that it was going to before had so you have to see these overturning i do predict that if you pass this bill, there is a very threat and having to talk about Justice Breyer who is very prosenate, having been general counsel in this committee. Wrongly decided there are many different things, not everything scalia said was right. I agree with my distinguished colleague here. The opinion was correctly decided. If the question is whether these bills will be struck down by the Supreme Court, one of these bills because the Supreme Court will say we just blew it with morrison. We clarify. My question let me clarify. My question is we have another addition to follow the cost to should whatever interpretations come from the court. Morrison versus olson was correct because the court recognized independent counsel statute was a strengthening the executive branch by enhancing its credibility, or if it weakened the executive branch, that was justified by the important goal of preventing the president or others in the executive branch from breaking the law. I think they were two features that were really bad policy. I dont think that makes it unconstitutional. I think the decision was rightly decided. The appointment of the independent counsel by the courts is the most troubling, and i think the justice i think that justice glia was right to say it was unconstitutional in the ground. The good calls removal could be construed in a constitutional fashion because it is a standard and therefore it can be construed consistent with standard principles to avoid any potential serious question of unconstitutionality is it could be construed to reserve the Supervisory Authority of the department of justice officials. Professor, professor pozen are argues that congress has restricted the president s power of Law Enforcement through civilservice protections. Civilservice addictions are constitutionally valid . If so, how would you respond to that analogy . Thank you, senator civilservice does not apply to officers of the United States, but only two employees. The remedy is not always mean statements. The remedy is not always reinstatements. In any event, noted to be constitutional, Robert Mueller has to be inferior. This is what Justice Scalia said emphatically and then he reiterated for majority of the court and edmund, inferior means inferior. Inferior to a superior. Fired at will, hard to say he really had the superior he doesnt have to follow the direct orders of the president of the United States within the lawful discretion that he has. Words matter, inferior means inferior. In my testimony, i completely concur with your view that even if im wrong about morrison, you have an independent obligation of constitutionality. Every week i tell my undergraduates that and they invoke your name. Even though you when i dont agree, we believe that senators have an independent obligation to take up to take the constitutional take the constitution seriously. That sounds like a terrible abuse of law students. Professor. Ered law i am not a principal officer of the state of texas. I would add that the special rescued her position is a christian of the Justice Department but it is controlled by the Justice Department. The investigator steps that the special counsel takes can be vetoed by the attorney general. There are many respects that he officer. Erior the good cause removal provision does not prohibit him from been removed. Withis another reason which he is inferior to the attorney general. Thank you for your testimony. Senator coons. Sen. Coons i would like to thank them for holding this hearing and i will like to thank our experience constructive panel for your testimony. I would like to thank you for your partnership for introducing this special counsel integrity act. I am grateful to a number of other colleagues, making member coggins Ranking Member conyers. House,s graham and white the fact that this group of members from across the ideological spectrum from both chambers have engaged in legislative efforts to try and provide some modest effective strengthening of the council shows that this goes beyond the temporary partisan concerns and reflects a deeper concern, something that reaches past the importance of special counsel millers counsel molars investigation and goes to the integrity of our government into the role of law. Our motivations in moving this forward go beyond what is just in front of us. [no audio] i am also pleased that more than a dozen groups and individuals have written us, expressing their support for the value of this legislation. I would like to submit letters to that effect. If i might, just to pick up where some of that questioning just was from senator cruz. Professor vladek, is it possible for commentators including a justice to appraise Justice Scalias dissent in morrison . Es, it is still to be good law i think he said the Supreme Court has cited dozens of times without overruling any portion of the decisions, is that correct . Yes,rofessor mark she goes out of her way she thinks the theory is wrong. I dont know why we cannot simultaneously be of the view that there are written opinions written by justices in history with which we disagree on the constitutional law. If i could add, is morrison good law . To me it is. You made in a port statement earlier which is all these two bills do is guarantee a right to judicial review that already exists. Can you explain that . I mentioned the case from 1973. Theorye is based on the that when you have a regulation protesting the special prosecutor, that regulation is forceful whether through the territory judgment. The judge held that active attorney general violated the regulation when he fired the special counsel. I think you could make the same argument about the existing 600. 7 d could be enforced today if effect the special counsel removed the tricky part. I mentioned this, there is a provision in the relation, 600. 10 that could be argued to prevent such enforcement. That provision did not appear in the watergate era relation. Open question some could argue that the special counsel bills we are talking about is significantly less intrusive on the power of the executive and the independent counsel statute. Can we take a quick review of those . Justice scalia the idea that independent counsel was appointed based on a referral from congress and a very deferential standard and approved by Judicial Panel. Is that the case now . That is not the case and that is one of the major reasons why these bills are much less intrusive. So the appointments is different. Is the oversight also different . Yes. The independent counsel has significant independence, budgetary independence, and independents over investigation. It is somewhat ambiguous whether it had to follow the Justice Department regulations. Are their removal provisions today different . The executive branch . Provision is weaker in the sense that it is more favorable to the president both in terms of the substance that includes reasons that are not in the removal provision of the independent counsel. It is entirely within the authority of the attorney general. Scully is core argument is that the president must have complete control over Law Enforcement function. Your testimony states the founders never believed that the president should be given complete control over that and instead that there are many other restrictions that exists now, and that there are other instances. Inspectors general, could you explain why that is relevant year . Not theseher or protections we are to advance violate separation of power . Look be brief, many people to the founders understanding of the constitution. Weretheir views were ambiguous. There is evidence that they never would have taken the position that Justice Scalia attributed to them. In the text of the constitution, they give congress various powers to control how the president uses his executive power. For example, the involvement of the senate, congress is budgetary power, the president and up executing executive power. This idea that branches are completely separate is not actually in the constitution. They are allowed to influence each other. Think the like to whole panel. You have given a number of suggestions. Of them construction constructive. I look forward to working with my colleagues to advance this legislation. Thank you. Senator, were you here before me . Ok, that is a no . Because i am having a little difficulty with this issue. I am not a lawyer, i am a comedian. We did not discuss this in comedy school. There are a couple of things that i want to discuss that have been said that may not be completely germane to the conversation now any of these two statutes. There seems to be arguments on both sides. Maybe this will have to be decided if you pass these in court. A couple things. I admire hers, who bringing legislation forward, said that trump has never really threatened mueller, but i think that he wouldng cross a line if he looked into his finances. To me, when he says crossing a know whatever quite the president is saying at any one time, nor do i necessarily think he knows. But it sounds like a threat to me. That his finances may be very germane, because we know from the kremlin playbook that part of what the russian playbook has been has been to compromise someone to get their folks into somebody to get s into somebody. If someone is compromised, they can control them. Said that if president clinton had one, if president ,nton was there would be investigations into her because of russia. But i think it is very clear that russia is cited on one side here. I do not think there is any question what side they are on. One,ieve that if she had there would be investigations because the house likes to do that kind of thing. I want to also clarify something. Sessions recused himself, this is senator graham said, he recused himself because he had been with the campaign. I do not think that is why he recused himself. Liednk he did because he under oath to his committee and said he had not met with any russians during the campaign, and in fact he had. I think that is why he recused himself. I do not think you necessarily would have had to recuse himself if he had not met with russians. I think that he forced that situation on himself. I do not know why and this is professor amar why you believe it is settled that the president cannot pardon himself. Why that is settled, but it is not settled why he could fire a special prosecutor . I would like to get some opinions on that, in fairness to professor amar i would go to him first. But the others have comments on that. The first principle of the constitution is the supreme law of the land. The rule of law. When the basic principle of the rule of law goes back to cicero in rome, no man could be a judge in his own case. , you will see it in the federalist papers, and throughout american jurisprudence, if you cannot be a judge in your own case, it is an Impeachable Offense to commit treason. If i cannot bribe you, you cannot bribe yourself. You cannot bribe yourself to pardon yourself. That is pretty basic. So, you are the president and i want you to pardon me, i give you money. That is bribery. That is an Impeachable Offense. You cannot do that. So now, this same person who wants the pardon is the one giving the pardon. That is like riding yourself. You are giving yourself a personal benefit. So the same way you cannot be a judge in your own case, you ner in your owndon o case. Decided exceptly as the first principle of jurisprudence. But you said it was settled. Settled, decide old, they seem to be the same thing. We can have other witnesses. The just want to underscore point that professor amar just apologized to me. Ida think there is such a principle that professor amar described. But if there is, it would forbid ath self pardoning and firing prosecutor who is investigating you. The two things are basically the same. I think in practical terms, the answer may remain academic. At the point at which the president is purported to pardon himself, i have to think that is when the house would seriously consider exercising impeachment power. I understand. To wrap up, my question is, i do not get why you think it is settled that the president cant pardon himself, but it is he can fire a special prosecutor. And you just nodded when professor pose nurse said they are the same. The you have them as opposites. Because we do not know if he fired mueller not because of mueller pursuing him, but because of mueller pursuing Paul Manafort or donald trump jr. Folks hispardon those friends and brothers, that would raise different issues. Theould need to know why president was firing mueller. If it was about savoring his own skin or someone elses skin. Ok, i am sorry. My understanding is that all of our witnesses have said that two pending bills are other than the preremoval judicial review. Until such time as the supreme merson, that is the law of the land, and congress can pass legislation, and that is what we are contemplating. This is it question for professor pose in her. As we heard testimony by jim numberthe president on of conversations with him put pressure on him, definitely the way director comey testified through these meetings they had, where the president discussed the status of director comeys i need loyalty. In another meeting, the president pressed comey about his investigation and firing of Michael Flynn and said, i hope flynn i hope you can let flynn go. Statements trumps to director comey in those instances give you pause . They give me pause. I think they are alarming, whether or not they rise to the definition of obstruction of justice. Perhaps with the intent to interfere with the investigation. It is already in the mandate. Does this reinforce the need for you to protect muellers investigation . Certainly. I agree. Alarming from that standpoint. That you believe that the president might fire someone who is investigating him or his aides, the natural response for congress is to try to give that person some exception. The sheriff of was convicted for contempt of court to stop racial profiling. Before he even asked for a pardon, the president pardons him. This is a longstanding practice of both parties. The sheriff did not apply to the department of justice for a pardon. He has shown no remorse. What is happening now is that the Justice Department is now seeking to vacate the sheriffs conviction. Are you concerned that the signals to pardon his inner circle not to participate in muellers investigation because he would have their back and pardon them, for example for refusing to testify . I think it is a relevant consideration that one should worry about. In the end, they know that he can pardon them. Nixons aides knew he could part them, and he never did. I would not want to draw any strong the fact that he didnt even ask for a pardon says a lot. Think this is a good example of the real prospect that a pardon could be completely unsupportable as a policy matter and deserving of a political backlash. Do either one of you believe the role of the justice reinforce the need to have counsel with independence from the attorney General Department and Justice Department . I think there are any number of episodes that reinforce the need for independence in the Justice Department. That is not unique to the last eight months. In my mind, efforts to create permissible independence and protections is laudable. I agree. If you go back to the record of a 1999 hearing about whether the independent counsel law should be renewed, a number of lawyers testified that they frequently felt pressure. Not necessarily being boston around, but they did not want to investigate their friends or get in trouble with their boss. There are concerns. That is in important reason to create independence. Thank you. Senator lee. Thank you. I would like to start back with you, professor poser. Wife congressional oversight not enough . We have investigations going on in some of the matters. Why is the opportunity to investigate through congresses oversight functions not adequate . I would use watergate as an example. The real break in watergate happened when the judge told the thatus lowlevel burglars he was going to give them extremely long sentences for a minor crime and they started talking about what their superiors had said to them. So congress does not have that type of power, nor does the trial also created a lot of public attention about watergate. Congress is not always able to command public attention. Watergate was the saturday night massacre. It went from something people knew about to something everyone was talking about. That was the case when the executive branch official, not a member of congress, was fired. Why thee many reasons Law Enforcement side is important to this type of problem. Does have power to remove people from the executive branch. So it becomes a political action. We do have that power. So if the concern is that enoughs cannot get public attention, i beg to differ with you. The concern is congress will not do it. We have additional concerns that arise out of that. That becomes a question for the people. A question that would cause great concern. Tomorrow, if the president has authority to give a particular order, and he gives that order to someone holding Public Office under his authority, can that be obstruction . If that person does not carry out that order after it it is to gives it obstruction the order in the first place or to remove the person . There are all sorts of things such as permissible voting for a bill because you believe it is in the national interest, but if someone paid you to do it, that would be a crime. Obstruction depends on motivation. There is argument that in general it is good cause. Cause is a problematic term. Good cause to fire someone if you give them a lawful order, you have description you have discretion to do that. Professor manning things that might be good cause. The bill does not say that. I do not think the bills want to say that, they want to create independence. You cannot be both, genuinely genuinelyt, and inferior. You cannot be both. Congress keeps trying to pass statues creating independence, and it jams with the gears that the framers set up. Inferior means inferior. He put that in a majority opinion called edmund that commanded a majority of the Supreme Court. That is one of the reasons morrison is vulnerable, because of the edmunds test. Judges appointing prosecutors was horrible even though two of the witnesses have said they agreed with morrison versus wilson on the facts, violation of separation of powers 101. So absent thecircumstances, ift can give an order and gives the order, that is not discrete that is not obstruction in the access of special circumstances . If you cant good conscious carried out, you should resign. What do these bills actually do . If the president can give the order and it is not obstruction of justice, and a failure to carry it out amounts to good cause, what is the purpose of the bills . They are hoping the judges do not agree with you on that point. I disagree. I think if we are at the point where we are debating whether committing an act of obstruction of justice is good cause to remove the prosecutor, i think if we are having that conversation, it explains why these bills have been introduced. I would like to engage on that last point. The chairman is kind and benevolent. If that is the case, the case you described, everyone agrees we have a problem. If everyone degrees agrees we concern is im, my do not read the constitution saying impeachment is the exclusive mechanism through which the executive branch can be checked in this regard. I do not know that i disagree with the point, but i dont think its the point we are making. Other point is not that there were not asserting that there is any affirmative denial of the existence of an alternative remedy, but the mayor existence of the three branches of government and the way they are set up creates perhaps the inevitable byproduct. I agree with that. None of this is without regard to the political levers that will come to bear in a case like that. Rofessor duffy president that has some substantial cause might actually fear of the political catastrophe of Something Like a removal like the saturday night massacre. Instead, in a rapid review, the construe it to be executiverous to power to avoid constitutional questions. I think the president would say that we could have our day in court and likely win that and be more likely to say there is an orderly process to go through and show that this special counsel has done something that has succeeded jurisdiction, or has a conflict of interest or something that mandates review. Under the status quo, is the case that if the special counsel youwrongly terminated, would have to go to a loan district judge. Both bills create expedited mandatory with a appeal to the Supreme Court. So even if you believe that the review mechanism is rem plays, this is a more efficient and less likely to drive outlier district judge way to solve the problem. Since everybodys been mentioning the saturday night massacre, i have to say that the system worked then. It worked because the American People and the house and senate decided what was good cause and what wasnt. That worked better. That is how the framers drew it up on the blackboard. 1973d it was rolled in that the attorney general violated way after the fact. That wasnt what exercise everybody the day after the thing. Let senator lee direct the discussion. Thank you. The overriding concern that i have, whenever we are talking about this area, is that bad things happen when we depart from the three Branch Structure of the federal government. One branch is in charge of executing and enforcing laws. I do not always like the way that every president chooses to exercise that power. I have frequently disagreed with president s of both Political Parties in the way they have chosen to enforce or not enforce the law in certain areas. Time that in a think echoes back to was loudly the fact that there are dyer cirque dyer consequences from departing. In the senate, we serve in an institution that delegated lawmaking power. We do not legislate anymore. Instead, we pass laws. Agency why the power to make good law in area acts. From that moment forward, the good people who work at agency y , and they are well educated and hardworking, they do not work for the people. They cannot be fired by the people. People in my state can fire me once every six years. People in the house of representatives can be fired every two years. You cant do that. You can have that kind of accountability with people who work in the executive branch. When you combine the power to make law and the power to enforce law, that complicates the problem even further. That is why these are legitimate concerns. I think it is not entirely satisfactory to say that either congress will always do it right or the president will not do it right. Human beings are fallible, they are moral. They may be regional ball but they will make mistakes. Problemn compound that when you depart even further from the system of checks and balances put in place by our constitution. Thank you very much to each of our witnesses. Thank you mr. Chairman. Gelling, thank you for being here. We will keep the record open for one week. Im sure many of us love questions for the record. And allciate your time of the members actively engaged in this committee. The committee is adjourned. Announcer