Transcripts For CSPAN2 Hearing Focuses On Role Of Special Counsels 20170929

[inaudible conversation] before we have our Opening Statements for this hearing, i have a short statement i want to make on another issue. If mrs. Feinstein has anything on the same thing im talking about, she would get whatever time she wants. Separate from my regular opening statement, i need to talk about a serious threat to this committees Oversight Authority. The need for congress to havee access to information in the executive branch is inherent in the constitution. The Supreme Court has said so clearly and repeatedly. Executive Branch Agencies cannot limit our legislative power of inquiry mary merely by entering into nondisclosure agreements with one another, but thats exactly what the fbi has tried to do. Yesterday i sent a pair of letters to the office of special counsel and the fbi about the most recent example. P nondisclosure agreements are essentially gag orders, plain and simple. They thwart transparency, corner jim account ability and seek to obstruct congressional oversight. The office of special counsel, osc for short is a permanent independent watchdog agency, not a temporary prosecutor appointed by the Justice Department mr. Muller. Following from congress, the office of special counsel investigation of former director james comey. By law, one of the office of special counsel jobs is to enforce the hatch act which makes it illegal for government officials to engage in clinical activity. The office of special counsel began trying together evidence to find out whether james gummy had a political motive for his actions, but there was no, there was one problem. The fbi refused to cooperate voluntarily. Osc could have a caged in the long legal battle to force the fbi to turn over the, but the fbi was apparently less concerned about osc than they are about Congress Oversight opportunities and responsibilities. It demanded the fbi demanded osc promise not to any of the information to Congress Gallagher that was the price of quick access to the tranptation by that agency. So, osc took the deal, but the documents on the Interview Transcripts are vital to this committees oversight of the fbi. We managed to obtain two heavily redacted witness interviews showing that james comey made up his mind and started drafting his controversial announcements month month the investigation was over but we were not until informed and they are doubtlessly agreed to a gag order until after the fact. According to osc, the fbi has never asked for such a gag order for. Neither has any other agency. Why now . Why was the fbi so focused on keeping congress in the dark . Why is it so afraid of shining the light of day on the controversial decision mr. Comey made in the months before he was fired. This isnt the first time the fbi has tried this trick. Ed it also reportedly made all the agents working on then clinton investigation agreement agree special gag order, but the executive branch cannot avoid constitutional oversight by assigning Agreements Committee has Oversight Authority over the department of justice and the fbi. If there is any whiff of inappropriate partisan or political influence in these institutions, under any administration or any party, this committee has a duty to get to the bottom of the process is exactly what we will do. I expect full complete and timely answers to my letters. This committee needs to see the full witness interview and all the documents including drafts and internal fbi memos about his decision to make that controversial Statement Last summer. I will do everything in mymy power to make we do. Do you have anything you want say on that subject. You can have whatever time you want. Thank you very much mr. That i am in agreement the general point of your statement. I have found it should also apply with the sharing of intelligence with this committee, and i have sent a letter to senator burr as a member of the Intelligence Committee. I have been privy to certain pieces of intelligence as would senator cornyn be privy to that. It seemed to me that when i saw it, it was relevant to this committees oversight. Hopefully the Intelligence Committee will be responsive and that matters that involve our oversight, which as we discussed in the investigation, there is clear oversight of the Justice Department and therefore, matters of obstruction of justice are within the jurisdiction of this committee. Hopefully we will be able to obtain that. T a i just havent had a chance to tell you that. Think you. Welcome everyone to this very important committeeee meeting and hearing that has very basic constitutional issues that are connected with it. We have an outstanding panel to help us go through this so todays hearing we will hear testimony related to to bills recently introduced by members of our committee, 1735 introduced by grahamha whitehouse campbell and all as well as their members of the a committee and senator booker who is not a member of this committee and 1741 introduced by senator tillis and coons. These bills have some things in common. Fy each attends to codify d. O. J. Regulations about removals of special counsel. Each bill provides for judicial review of removal decision, and each bill has bipartisan support. It is also clear that each bill is motivated by similar concerns about the Current Special counsel Robert Muller and his investigation into the russian government effort to interfere in the president ial election. One of the bills even specifies that it applies retroactively to the date of robert dollars appointment bills were introduced and media speculation was rampant that President Trump was contemplating firing Robert Muller. The president has that he doesll not intend to fired Robert Muller and he made the right decision. I hope this investigation proceeds to its conclusion rapidly on what Deputy Attorney general Rod Rosenstein charts it to investigate. The american sure this committe committee, which has jurisdiction over j, fbi, et cetera will take its oversight role over the investigation as seriously as i committee has a reputation for. While there is no doubt that Current Events are significant to the issues we discussed today, it is my hope that during todays hearing the committee will engage in a broader discussion of the grand tradition of the senate. Both of the bills will be discussed today and they raise separation of power concerns that i believe deserve the attention of the committee and respectful discussion of a. The issues that we discussed today are bigger than the president or any of us. They concern the fundamental design of our republic when they drafted the constitution founders of this nation. We are rightfully concerned w that those in power would be tempted to abuse it to favor their own interest. To prevent this, the founders divided power among the three branches of government that i dont have to reiterate but James Madison put it this way ambition is made to counteract inpatient and ambition. It is through this system of checks and balance between the ambitious branches of government that are fundamental liberties are protected. There are those who argue that the rise of the modern administrative state, with itsad federal agencies that are vested with both executive andnd legislative powers and even judicial power sometimes have weakened the separation of power provisions of our constitution or at least changed how we should understand them. I believe our Government Works best when each branch of government has a clearly defined role, and i think even in our modern times, with our greatly expanded federal government, that is not too much for us to hope for. But, it is something that wet as members of congress mustt carefully consider as we look at this draft registration. Some will agree that these bills are good policy and argue by codifying the d. O. J. Special counsel regulations and providing judicial review over removal decisions they provide useful certainty about how disputes over the removal of a special counsel would proceed for the office of special counsel, but there are others who argue these efforts run a foul of the constitution by interfering with the president s ability to control the executive branch and to make sure the laws are faithfully executed. I hope both those who view these bills as constitutional and those who express theirhe doubts, that there constitution can agree on one thing, there is a robust role for congress in overseeing the executive branch including all investigations conducted by the department of justice apply appointed special counsel. The American People also play an oversight role and can apply political pressure to any president who removes a special counsel for reasons they do not consider adequate. Do no finally, the constitution gives congress the ultimate 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. Ne if there is one thing that i have learned in my career as both a founder and farmer and a senator, where the sun pokes through, there can be no darkness. Ive spent my career as a strong advocate for openness and transparent government but i also believe the separation of powers is essential to preserve the liberties that wei americans enjoy. I look forward today and gorsuch todays hearing. Thank you very much. My ea as i might, let me start with a correction in my earlier remark. The letter i mentioned on the intelligence sharing with this committee was sent to the director of the cia, mike pompeo, and was signed by both the chair and ranking memberd of this committee. We sent it yesterday and id ask that it be incorporated in the record. It will be in the restaurant. Without objection. Thank you for calling this hearing to address the two bipartisan bills to protect the integrity of the special counsel. Today, under Current Department of justice regulations, the specialsp counsel, as everybody knows, cannot be fired for anything but misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause. Since those regulations have been in place since 1999. They were made to ensure integrity and in partiality when department of justice wase of interest. They have been in place during democratic and republican administrations. Neither their necessity nor efficacy has ever been seriously questioned. Both of the bills we are considering today provide extra layers of protection for special counsel. They were introduced on the heels of report that President Trump was contemplating firing special counsel bob muller. A man who has broad bipartisan support and who has served this country with honor and distinction. G i think my colleagues, from both parties, agree that firing him would be a grave mistake. For example, senator grahamio has said that unless special counsel muller did somethingsa wrong, firing him, and i quote, could begin, could beir the beginning of the end of the trump presidency. Senator markey has gone so far to say doing so would be a fullblown constitutional crisis. Firing special counsel muller would be that much more concerning given widespread understanding that individuals post to the president , or even the president himself have tried to tip the scales of the Russian Investigation. N. Weve all heard President Trumps reaction when attorneyse 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. Hear 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 quote, let flynn go, and to lift the cloud even though an fbi investigation was ongoing. Simply put, i have strenuous concern about President Trump respect for the rule of law. The president must know that congress will not stand idly by if he attempts to undermine independent, criminal investigations. Crimi turning to the bills themselves, first, they bothth require good cause because before the special counsel may be removed, this means the attorney general could not fire the special counsel absent some sort of misconduct, illegal act, or violation of Justice Department policies. Secondly, if the attorney general finds good cause to remove the special counsel, both bills allow a court to review that finding. The two bills differ a bit. The bill introduced by senators graham and booker and cosponsored by senators whitehouse and blumenthal would require a court to determine that good cause exists before the removal of the special counsel. The bill introduced by senators tillis and coons would allow the special counsel to ask the court for reinstatement after the fact t if the removal was not for good cause. That bill also provides that if the attorney general is recused, only a department of justice official, confirmed by the senate, could fire the special counsel. We are j were joined today by a panel of distinguished legal experts , and i very much look forward to this discussion. Co i expect much of it will cover Supreme Court precedent and whether the precedent applies to todays situation. While precedent is certainly important in this discussion, i am hopeful we wont let a discussion of legal theory prevent us from speaking about the real world problems, these bills address. We are aware that in 1973, president nixon wanted to fire special prosecutor called cox conducting the watergate investigation, but the Watergate Special prosecutor could only be removed by the attorney general, and only for good cause. Nixons order to fire the special prosecutor led to the saturday night massacre and resignations of attorney general elliott, richardson and deputy general William Rocco house who determine there was not good cause to fire cox. Although cox was ultimately dismissed, it was not beforere to Justice Department officials had sounded the alarm on president nixons interference with the investigation. That is proof that protections like the ones we are discussing today are not only necessary, but they also work. If past is prologue, what we are discussing today could not be further from being merely theoretical. With that i turned to the chairman. Thank you. Senator feinstein already referred to our analyst as distinguished panelists, and ive noted, my staff has noted for me, all the publications you have all done. If i refer to every one of those publications you will never get a chance to give your remarks. Im going to give a relatively short introduction of each of you, but you can go to record everything that is in my opening remarks will be in the record. You will know that i have absorbed that you are all well published and distinguished in your profession. Our first witness is professor Akhil Reed Amar, sterling professor of law and Political Science at yale university. He teaches constitutional law. He is also won awards from the american bar association, the Federalist Society and others. He is authored dozens of lawha review articles that i will put in the record. Our second witness is professor eric, the kirkland and ellis distinguish Service Professor of law, university chicago. He writes about antitrust legal theory and constitutional law including the law of president ial powers. He has written more than a hundred articles and academic journals in more than a dozen books including two of thepr president ial power, one entitled the executive unbound after the madisonian republic, and then he has published in various important newspapers and other articles. Those will be put in record. Our third witness, professor steven, professor at the university of texas school of block, senator cornyn and i, i was going to introduce these folks. Was i supposed to give deference to you. No, sir. Go ahead mr. Chairman. I am glad to have someone with the university of Texas Law School today. We discussed by the reauthorization yesterday in austin. Im glad to have him here. Professor steven, a professor at the university of texas school of law teaches federal jurisdiction, constitutional and National Security law. His works appeared in a variety of news forms and publications including harvard law review and yale. Our final is john duffy. S he is at the Virginia Law School and teaches tort, administrative law, patent law and intellectual property law. It he has also served as director editor for the university of chicago law review and was awarded the olin fellowship in law and economic, professor duffy clerked for judge Steven Williams on the u. S. Court ofnd appeals for the d. C. Circuit first glia, served as attorney advisor in the Department Justice office of Legal Counsel and practice law at covington and birmingham. He has also published much the committee has also received a letter from Professor John harrison, the James Madison distinguished professor of law at the Virginia Law School and he expresses his views that both of the bills that we are considering today will encounter constitutional difficulties in that letter will be put in the record. We start with you professor. R. Chemistry chair. Its an honor you with you all. I previously testified before this committee on half a dozen occasions, and its a great privilege and a solemn responsibility to be with you. Two bills undercurrent consideration, the Graham Booker bill and the tillis coons bill came to fort potential president ial in connection with attempted removal of special counsel including the possible removal of Robert Muller. The bills have laudable goals and its heartening to see bipartisan sponsorship. Several several of the bills cosponsors are my dear friends. I have no such personal relationship with President Trump whose wings the bill aimed to clip. Im a registered democrat and opposed President Trump in the campaign and i am distressed by many of things he has done and aims to do. That said, i must sadly report that as a scholar who studied the constitution, i believees the builder on wise and unconstitutional. It gives me no pleasure to say this. Happily, i think there are alternative reforms that arere more constitutionally proper and more likely to achieve the purposes to restrain improper behavior. In a nutshell, i think the bills will be vetoed andnd judicially invalidated and in any event, violations of several basic constitutional principles. My preferred alternative in keeping with what you said, the one thing we can all agree on is that theres a robust role for congress in overseeing the executive branch, and i actually think this body itself has more resources and would be better advised to use some of its own power than to try to punt things over to the judiciary in the way these bills tried to do. In a nutshell, if the bills were to reach th the president s desk, i think he might be inclined to veto them. Only twice in 1952 has a president who controlled both houses of congress had a veto overridden. Likely to be backed by an olc memo and a broad range of Public Opinion leaders. Presiden he will claim hes defending the presidency more generally and it would boomerang. Instead of checking him, this would actually empower him. Were the issue to reach the court, and i think there is a disagreement among the very distinguished panelists, i count six votes for invalidation. We can go through my reasons for that in more detail if the senators are so inclined. That too would end up boomerang and backfiring the need to chase and check this president or any president tempted to abuse powe power. In a nutshell, the constitution says someone like Robert Muller who has not confirmed by this body is constitutionally and inferior officer. It is very hard to be both inferior and independent at the same time. Its like a Square Circle the needs bills tried to make someone who is inferior also independent and constitutionally thats a problem. Technically the reason hes independent is he actually can be fired within the executive branch. Here i channel many other things justice glia said in his most famous opinion, the morrison versus olson opinion but i go beyond that in my written testimony is available to you all. My proposed alternative, in the spirit of the federalist 51 is to actually have a standing Bipartisan Committee of this body, equally balanced , a Standing Committee on president ial oversight and this committee would i institutionalize the separation of power rather than party. You woul you wouldnt be asking as republicans and democrats as such, but youd be acting as senators checking the executive, we continued be channeling the best thing, instead of punting things to the judiciary you would be emulating it at its best when chief Justice Marshall reaches out across the aisle. You could be doing what the judiciary has done rather than punting to the judiciary itself. Thank you. I should have told all of you that your full statement will be put in record. I want everybody to know that five minutes is a short amount of time for all of you folks that write so much. The good morning members of the committee. Thank you for providing me the opportunity to testify on special councils and the separation of power. Ive evaluated the two bills under consideration today and i conclude they do not violateti the principle of separation of powers, but on the contrary advance important constitutional values. Senator feinstein has mentioned the saturday masker to us, and i want to bring this a little bit back to life, especially for people who were as young as i wason when it took place. On saturday, president Richard Nixon ordered the attorneyey general to fire the Watergate Special prosecutor who had earlier issued a subpoena for the watergate tapes. Richards when Elliot Richardson refused and resigns they ordered deputy general to fire him. The Deputy Attorney general also resigned rather than carry out the presence order. The president and solicitos or general worried about leadership vacuum in the Justice Department before it swung the ax. The saturday night masker converted the long crisis of watergate into a fullblown constitutional crisis. Y four years after the resignation, Congress Passed the Government Act of 1978, a provision created the new kind of special prosecutor, later called the independent counselld who could be fired only for good cause, given significant operational independence and appointed by a panel of judges. A major goal was to ensure constitutional crisis would never occur again. The the law accomplish that goal over a roughly 20 year time. In effect despite the recurrence of significant controversy over wrongdoing during the reagan and clinton administration. Owed t Congress Allowed the independent counsel provision to lapse in 1999. Critics had argued that it created too many independent councils who spend too much money investigatingo unimportant matters. The question today, however, 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 regulation which is why they are inferior officers and protects the removal except for good cause. Over the years many people have raised questions about whether congress is allowed to put limits on the authority over Law Enforcement. They argue such limits on theri executive power violate the principle of separation of power. The Supreme Court decisively rejected this argument in a case called morrison versus olson in 1988. In a 70. One decision, the court ruled that the independent counsel law did not violate the separation of power. The reason was the law did considerable good by enhancing the. Since the bill underun consideration today restrict the power far less than the independent counsel law, these bills cos pass constitutional muster as well. Rt opi not everyone agreed with the Supreme Court opinion. The professor omar noted that the single dissenter wrote a powerful opinion that has one much praise. There are good reasons why Justice Scalia did not persuade any of his colleagues. First, he claims that the constitutional gave complete control over Law Enforcement to the present. Any attempt by congress to influence Law Enforcement violates separation of powers. N th this was not the understanding at the founding and it is not true today. The constitution itself givesly power over lawenforcement, explicitly in the text through appointment and its power to define offices and budgets and congress has use that power over the years in many ways. Ed second, justice glia claims that an independent counsel is unaccountable. S meanwhile the president can be as Justice Scalia put it, the president is directly dependent on the people. Si since there is only one president , he is responsible. The watergate burglary was political espionage. One that helped nixon win reelection. N they couldnt punish him at the polls because they did not know about the lawbreaking. They pursued a course of obstruction of justice that may have succeeded if not for the discovery of the tapes. Let me conclude. Each branch should Check Another branch if the Latter Branch abuses its power. The constitutional obligation is to check the branch to provide a means to ensure its done fairly. The special counsel independence act and the special counsel integrity act take an important step in this direction. Indeed they will more likely enhance executive power than undermine it because they reassure the public that the officers are not above the law, including the president himself. Thank you. Its an honor to be back before you today. Rather than rehash my written statement, i would like to take my time to make three points that hopefully help to crystallize the areas ofre disagreement among thehe witnesses. Regul the current counsel special regulation, forgive me if i read for to it, its worth highlighting as the major ways in which is far less intrusive. These are the executiveut power. First, the power of appointment belongs to the attorney general. E if there are concerns about the scope of the investigation, if the special counsel seeks to enlarge the jurisdiction and if theyre concerned about whether the investigation is going to far, the attorney general makes the final decision about any questions of jurisdictional scope. Thats not subject to review. They provide that its the attorney general or the active attorney general who makes the removal decision in contrast to three judges of the d. C. Circuit as was true. If the largest concern folks had with these was runaway prosecution which many thought we saw in the 1990s, there really is no meaningful chancet of that under part 600 as its currently drafted. T with regard to the two bills, i biked to understand how modest they are. There was actually a lawsuit brought on behalf of special counsel cox seeking to enforcece the regulation and contest if he was wrongly removed. That was a declaratory judgment and injunctive action. The judge ruled that indeed they had violated this regulation by removing specialal counsel cox. [inaudible] they improve it by the automatic right of the Supreme Court that comes with it. My third point, with regard to the Supreme Court, it is unsupported. In contrast to the widely held view that absent of the independent counsel statute it was simply bad idea. I think we too often conflict those who think statute were bad policies with those who assume they must be unconstitutional. I disagree with my colleague and mentor that there are six votes on the current justices. Im not sure how you get past three. Even if theres less support from morrison, let me go back, these bills are so much less intrusive. The real concern is with the regulation itself. Im hardpressed to see why these would be the vehicle through which the Current Court would seek to review prior precedent. Me in closing, let me just turn back to justice glias morrison dissent. I think its rightly celebrated for its style, its passion, and how wellwritten it is, but that doesnt seem his right. All user quote to point out the importance of the whole a enterprise. Setts he closed by reminding everyone of the text of article 30 of thee massachusetts constitution of a 1780 and that the government of laws and not of men. Manifestation of that really important principle and ensuring a mechanism for protecting them from wrongful termination is at a time when you bring much needed to that laudable, desirable and hopefully bipartisan goal. Thank you very much. I look forward to your question. Thank you. Now mr. Duffy. Distinguished members of the committee. Thank you for inviting me to testify. My analysis is necessarily tentative because the Supreme Court precedents on the removal issue have not been consistent. The court seems to have a curious habit of abandoning its own resembling. In the 1935 decision and the 62 decision, it was less than a decade earlier in the liars case by the morrison versusre olson case explicitly threw overboard the entire reasoning of the humphrey executor case. In 2010 the Free Enterprise did not apply the functional analysis. [inaudible] have to make definitive predictions which i think is a fair point. Ed turning to the bills, 1735 proposed transfer of Removal Authority from the judy Additional Branch seems unconstitutional under the Free Enterprise fund holding. Under 1735, special counsel would enjoy protection unless and until the attorney generalur indicates that counsel should be removed under one of the statutory grounds for removal. That system seems to impose two levels of tenure protection between the special a counsel and the present. Ch under Free Enterprise funds, such multilevel protection is unconstitutional. Indeed, the removal system under 1735 differs from Free Enterprise funds and present additional problems against constitutional reality. The 1735 is directed toward a legitimate policy goal which is to provide an orderly process to test the legality of a removal order. Without the brinksmanship of a disruptive removal order ofh uncertain legality such as the one issued in the 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 removal not take effect for a period such as 14 days, to borrow the period from the other proposed legislation, to preserve the executive prerogative legislations that also provide that special Counsel Authority would be temporarily suspended during that period of time. That was provides for judicial review and for the court to grant any appropriate preliminary equitable relief. Legislation requiring such a process would be well within the mainstream of existing precedents broadly consistent with the existing practice of administrative law. With respect to asset 1741, the most constitutionally aspect of the bill is the combined effect of sections to be and to e which together change the regulatory tenure only afforded to a single loan officer. There are no clear evidence supporting such a retroactiveco grant of stronger tenure for an existing officer. In my written statement, i sever certain lessons that just that such a retroactive strengthening might be unconstitutional. Furthermore, the selectivity, the charging of a single official makes it look more like an unconstitutional attempt to circumvent the power to cancel appointments particular offices that i recommend they be deleted, or if its maintained that the subsection be made separately severable. In the event that the portal section to eat unconstitutional they would allow the procedures to be used for other legal challenges such as the challenges heard in the case that was mentioned by my colleague from texas. One last point, the mandatory reinstatement remedy in section 2d3 goes beyond the remedy allowed in part Supreme Court cases and even beyond the remedy authorizing the independent counsel act. I recommend that section be modified to track the independent counsel asked and give power to the court grant reinstatement or other appropriate relief. Thank you for your time and attention to these issues and thank you again for the invitation to speak to the committee. W, we will have five more rounds for questioning. Professor duffy nmr, as you know, both bills codify regulations on foreclosure removal and permit judicial review. In your opinion, are either of these steps necessary for congress to ensure that the special counsel investigationn is conducted properly for his oversight and impeachment power enough . Impea will start with you. I believe the change from regulatory tenure to statutory tenure is not needed if youre 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 isof likely to be respected by the department of justice officials, except to the extent that they begin to see difficulties or conflicts of interest or other causes that might require removal. G that is likely to be closelyl guarded because it will dealic with the operation of the investigation which matters not really public, not known generally to the members of the public. I am a fan of congressional oversight and i think its a better mousetrap than trying to make a statute that codifies the good cause removal standard. One thing that makes the good cause removal at present is from a former legal point of view it could be rescinded by the executive branch. The executives choosing to bind itself, and that is part of what makes Robert Muller technically an inferior officer. If you put it in a statute, how is he actually constitutionally inferior, cabin officers can be fired at will and yet this person cant be and he supposed to be inferior. The morrison case, you had Alexia Morrison investigating one person who is out of office, ted olson so maybe that person was inferior. Here, youve got someone whos investigating the president ofir the United States for possible obstruction of justice and trying to find the director of the fbi as well as other people in involved in them massive scandal. Its hard to say that person is actually in any way inferior if statutorily you require these limits on removal. Cabin officers are superior. The principal officers, they can be actually fired at will, and there is the pardon power that interacts with all of this, congressional oversight by this committee or Standing Committee of some sort is far preferable way to go. E but i have another question thats a little bit out of the purview of this hearing. Its central to oversight responsibilities that id like to ask you if you could comment on it. Each or all of you. According to recent presscent p reports, director rosenstein has been interviewed as a witness by Robert Mullers office. He reportedly provided them a copy of the president s initial memo, justifying the removal of fbi director chromium was questioned about it. You believe that poses in conflict of interest and should the Deputy Rosenstein consultant the ethics official at the department of justice about the issue . If you could comment, i would like to have your opinion. I havent investigated that sufficiently to give you a good answer mr. Chairman. Is that the same for all of you . Okay. Let me move on. Theres something thats very bothersome to this committee. I want to bring that up. Al dec s1735 requires the attorney general or acting attorney general to submit his removal decisions to a threejudge pane panel, making a finding that the removal special counsel is appropriate under 1735 for cause provision 1741 that permits the special counsel himself to seek review of any removal decision. In your opinion, is the approach taken by 1735 or 1741 preferable from aal constitutional perspective. I will take that first. I address that a bit in my written testimony. I think it would be safer to take the approach where thent initiated complainant is the special counsel. Let me just illustrate that with the hypothetical. Imagine if they dont even contest the attorney generaldo and that has caused for his removal. I t i dont know why we would have him go through an unnecessarily judicial process. I think it makes a lot more sense that the attorney general notify the special counsel that he or she believes theres grounds removal. If they object, have him or her be the one to initiate. I like the symbolic impactll of the rule on 1735. Im not sure it matters and practice. Imagine for example that the president or the attorney general or acting attorney general fired the special counsel without going through the court, under 1735, been the special counsel would bring a case in front of the court thing you violated this law. Even if the court had concerns about whether the law was constitutional, we would still hear the case because there is an allegation of a violation of the removal provision. In the end, you will get judicial review for whichever bill you use. It is true that the present vision is 1735 is a little more unusual and harder predict how a court will react to it. Do you have anything to add. Ss i respectfully think that both are problematic and remember, since were talking about horse getting involved, the solicitor general of the United States, presumably would be representing the executive branch. I believe last week the Senate Confirmed francisco to that position. He is a former law clerk to justice glia. He might very well have a viewew about unconstitutionality and if that were to pass, the senate might need to retain a its own counsel and be involved or not, and now youre putting the whole thing in the laugh of the judiciary rather than actually taking control of the matter yourselfro which you would be able to do with a robust oversight process where you would be the one, and the cameras of the world would be focused on your deliberation about whether the stink to high heaven or not. Ideally you do it in a bipartisan way, in a manner somewhat akin to the Ethics Committee whereby rule you have equal numbers of both parties, and i think that would just be a much better way of oversight since watergate has been invoked on a bunch of occasions. Remember, in watergate, in real time, the judges didnt reinstate archibald cox. Was actually politics and congressional oversight thatsi actually worked. Senator feinstein. Now im really confused. I let me try to sort this out. Do you acknowledge the two special counsel bills are narrower than the independent counsel statute . Could we go yes or no downline . Certainly not the first. Certainly not 1735. Certainly not 1735 which requires on its face that the executive branch go to the judiciary in order to get permission to remove. The independent counsel statute did not have that structure. Instead the attorney general issued the order of removal him or herself. Graham booker whitehouse and blumenthal at that time. I think what professor duffy mentioned is the only respect in which these bills is more of an intrusion. D 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 in general both are considerably narrow there is the technical issues that professor duffy raise but i do not think there of the essence. In general it is narrower but still unconstitutional. Both in my view and on the books it is unconstitutional. The statute last senator in 1999 that the ethics and a last because janet reno came, then attorney general, came before the senate of the United States. And if i can just tell you what she told this body because it is actually pretty important. And it is in a note in my testimony. And she had originally supported the ethics and government after 1978 and she came reluctantly to the position. This is very much where i am that this is unconstitutional because what she testified on march 17, 1999 quote after working with the active come to see with great reluctance that the independent counsel acted structurally flawed and that these flaws cannot be corrected within the constitutional framework. Independent counsel is vested with the full gamut of prosecutorial powers but little of the accountability and is not confirmed by the senate. Accountability is no small matter and it goes the heart of our constitutional scheme the founders believe that the enormity of prosecutorial power that is all a quote, here i am paraphrasing just as we are talking about over prosecuting under prosecuting the blame can be put on someone that can be politically punished. That was her testimony. That the bill was flagrantly unconstitutional and at last thanks to a sunset provision as the professor mentioned in his testimony. I am a nonattorney. So i will put in that language. Which bill between these do you believe is the soundest on the basis of constitutionality . And i will go down the road with this. And being able to carry out its purpose properly. I think neither because i think they both would be judicially invalidated. We have nothing. And working with these, i offer a different way of skinning the cat. Lets go down the line because i do not want tents run out. A book valid under the constitution. I think their equivalent. If i had to choose one i would choose the tillis cones because it avoids a judicial issue that people mentioned but i think will easily be upheld by the Supreme Court. I agree. I would say in my testimony i propose that tweak to Graham Booker that would avoid the article of the article 3. What is preferable . Had special counsel remained in place while he was challenging his removal or have this period of potentially weeks per month weight is i have a policy preference for Graham Booker. I think the one issue can be easily solved. John duffy. I did not vote but for different reasons. In the sense that the 1735 bill has a problem. The 7041 is retroactively changing and in this specific investigation you cannot really modify the 1741 bill without exempting or having it in applicable to the Current Special counsel mueller. Which i think is the overall thrust of the committees again, i am not a lawyer. But if i hear you correctly, you are saying currently there is no protection. That the special counsel cannot be fired. And you are saying that there is a degree of unconstitutionality to the two bills. But the Graham Booker bill, is that the bill that is most likely survive a constitutional test in your view . No, the tillis coons. Can we go down professor . That is where this is with me. We can talk about the individual, my reasons for the count but i think neither one will survive the Supreme Court challenge which by the way, francisco will be the one up there and you will need your own mr. Stephen vladeck. The objection to 1735 is something that i can fix easily. I think that if tweaked the way i propose my testimony, it will have the same chances because it is an up or down question. I think 1741, which is the tillis coons bill probably, many of the procedures could be or might be i think constitutional under morrison versus olson. The court might likely strike down the retroactive provision but then it would go forward with the procedural provisions about hearing the challenges and there will be other challenges such as the ones that were raised to any removal order so we were procedurally now i am totally confused. Thank you very much. Senator lee. Thank you for being here. This is one of the most overlooked issues in our system of government. The question of separation of powers. Any time that we tinker with the division of power within the federal government, the branches of government, we do great 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 powers is about. It is why we are so thrilled to hear the professor reference 51. Ultimately, government is the greatest reflection on human nature. If we were angels we wouldnt have or we would not need all of these rules. We are not angels, we do not have access to angels to govern over so we have to have rules. When we deviate from the separation of powers and you consolidate and the same person or group of people, the power to make and enforce doors inevitably ends in tyranny. It is the definition of tyranny. It is what tyranny is. When the same people making laws are also important and we have a big problem. One of the questions i have specifically regarding this set of legislative proposals would be, what count is good cause . On what basis could someone be removed . Both of these bills say that a special counsel is permitted. To be removed based on quote misconduct, conflict of interest or other good cause. Including violation of policy to the 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 judicially manageable standard. We know what that means or can mean. We know how we would go about deciding what that would mean in court. Topic of interest. But good cause. What does that mean . Could good cause amount to what happens when say, the attorney general says, drop this case. And it is not drunk . Could it mean that there is good cause when the attorney general says do not issue that subpoena. And the subpoena is issued anyway. What is your reading of that professor . Thank you senator. Since you mentioned the founders. George washington directly orders, this is on march 13, 1793. He writes William Riley instructing him to enter for the indictment of john evans did that directing prosecutors what to do and not do. So did thomas jefferson. One involving William Duane and another involving and greenleaf. I do believe that when the president gives a lawful order within the discretion of a lowerlevel official in the executive branch, it is really an inferior officer to find that lawful order, it would be good cause but the statutes dont say that. They say if you violate the doj regulations, that is good cause but they do not specify that when two options are lawful, you can do eight or you can do b. And the president directed to do a and is that you do b. The statutes are not at all clear that it is actually good cause. And i think it raises a serious constitutional problem because if it is not good cause than what washington did was unconstitutional and was problematic or adams or jefferson. The president cannot tell you to do something illegal but within the zone of lawful discretion, if someone is really an inferior officer and in the executive branch has not been confirmed by the senate there is a real problem and the bills actually exacerbate the problem. What is your response to that . Senator lee, you know that many concepts are being instilled in overtime. Incapacity is actually baker wouldve mueller for example became ill and cannot work sort of but not too much, without be grounds for removing him . Good cause we can easily think of examples if he is fired in order to obstruct justice. That is not good cause. If he is fired because he is not showing up to work and not doing anything, that would be good cause. If it is a multi point you have to trust the court to evaluate the reasons that we are forgiven. And make a judgment accordingly. Briefly, i think it is worth stressing that in this context the ambiguity of the phrase is no executive branch. Right . Because the ambiguity of the phrase i think leads to the conclusion that courts would interpret good cause to allow the attorney general to come up with plausible grounds. To me that is a feature of a good cause provision. It gives discretion as a positive it just stopped after misconduct. My time has expired. I hope you have the time to follow up on this. Thank you. Senator leahy. Thank you for having this hearing. We were just going through the work of special counsel and others here. Again to the senate but heard a lot of discussion since then, many of us have questioned the years long multimillion dollar meandering investigation into president clinton. It is insistence on Sexual Conduct that did not show when he was much worse things happen. But there is no doubt that the underlining statute did not have the separation of power. Morrison versus alston, 71 decision. It made that clear. I think that the two in discussion, by graham and tillis and others are more modest. So professor pozner, in your view, what is the true threat to the law if one of these two or if the president disregards the existing Justice Department regulations to buyer the special counsel to fire the special counsel for the investigation . If the president , if one of these bills is enacted and the president ignored, we would be back to watergate. Where the, there are a number of issues here. One of them is the president or any high level executive branch official not being investigated because it basically a problem of selfdealing in executive branch. That is inherent in our system to some extent. And if congress has an obligation to ensure that the selfdealing is limited as much as possible. I should add by the way that there was another special prosecutor appointed and i think 1951 during the truman administration. A man named morris. He was appointed to investigate the corruption in the irs and the Justice Department. He was fired the attorney general at trumans request and the investigation was never completed as a result. So that is the thing that we have to worry about. That is what motivated the independent counsel statute. If the independent counsel statute did produce unnecessary investigations it is not a problem here because the attorney general retains the power to make the appointment in the first place. May ask you another way. The president of the white house under cutter, they cut back the budget of the special counsel. It was in the new york times. That if he wanted to interfere in the Russian Investigation vice chairman of the appropriations committee, we have appropriations powers. The president of the attorney general or the acting attorney general cannot undercut or eliminate funding for special counsel. We do not have the power. You do have the power. You do have the power under existing regulations the attorney general determines a budget of the special counsel and could request zero dollars when the special counsel if that is what he wants. Congress could step in and appropriate money for the special counsel. That is within congresss power. The president would be required we have, we talked about special counsel ready to file the separation of powers. Suppose we pass no law and if the current regulation somehow that protects counsel does not exist, such an injustice is always a crime no matter what. In my correct . Is it a basic Protection Special counsel if the president required him to the Russian Investigation, doesnt that raise the question . I think the existing regulation already goes a fairly long way towards protecting the special councils ability to investigate that. I think it is possible that the existing regulation will be sufficient to try and remove without good cause. The real question here is not where congress has this entire structure. The Justice Department. You had said that no man can be a judge in his own case what is that mean about his ability to pardon himself. Since you mentioned that, since you mentioned the pardon, this person happens to be my administration and my former campaign had or friend or relative. And im doing this so the country can move on. We are spending too much money. This is distracting from other things. Accountability in the end, there is a pardon power. The accountability in the end has to be impeachment and press oversight and senate oversight. But i dont think judges can actually undo that. Judges cant quite decide whether that is good cause or not. The pardon power actually means at the end of the day the president can choose not to prosecute pot smokers and colorado are other folks. He cannot pardon himself. Thank you. [laughter] i just wanted to make sure we have the answer. And now i have my questions in the statement. For the record, it will stay open for a week so you might get questions. Or an answer in writing. Statement will be on the record. I have republicans down this way. Graham, tillis thank you mr. Chairman. Lets remind ourselves why we are here. Do all of you agree that attorney general Jeff Sessions made the right decision to recuse himself . From the Russian Investigation because he was part of the campaign . I have no, i would have to look to the facts on that. I read press reports which i as far as understand the facts, yes. Yes. So far as i understand it was sensible. I think the attorney general made the right call because it will be difficult to have the attorney general investigate the campaign at which he was intricately involved. That is the start of all of this process. So once attorney general steps aside, you have the Deputy Attorney general. Will agree that he could take the place and continue. Is that a yes from everybody . Yes. And we had a statement and actions by the president that unnerved the Deputy Attorney general and appointed special counsel. Do you all agree with that . Yes. That is how we got here. We got here because Jeff Sessions said i cannot do this, i should not do this. Rosenstein says i will do this. And some things happen between president and james comey where rosenstein said we need some new person. A special counsel to look at this. That is how we got here. We agree with that . Yes. We are trying to make sure that we move forward and hold mr. Mueller accountable would also give him protection to do his job. Do you all agree that the president himself cannot fire mr. Mueller . Actually, if you read evenly and by our mutual friend neil in the Washington Post who actually helped to write the regulation. He said it is not altogether clear. It is not clear that the regulations themselves actually applied to the president as opposed to merely figures in the department. You think he has the Inherent Authority to fire the sky . He may very well claim that and we have not settled that either way. What about you professor . I believe that a court would reinstate the special counsel under constitutional principles. I do they agree that others i agree i will point out the Supreme Court has held multiple times that the executive branch is bound by regulation that itself until he rescinds them. Therefore you do not think he can. All right. I tried to avoid you are doing good. Mr. Duffy. I think he has de facto power because he could order his representatives at the dod to refill the regulations which i think would be it would be a twostep process. Or you can fire people until you find in acting attorney general that would in fact fire the special counsel. Do understand we are trying to do is make sure that something out of bounds does not have been in mr. Mueller can proceed forward with some confidence. Is that anything worth the Congress Looking at . Even the circumstances that we have . Do you think that we are doing the right thing by looking at that . I think you are. In particular then providing a process, an orderly process of judicial review might strengthen the president ial. And if the president believes is good because he can issue an order and not have saturday night massacre. Here is what im trying to avoid in the saturday night massacre. I want the president to know that there is a process. There are checks and balances long before you got here and they will be here long after you are gone. There are two ways of doing this. The approach basically before the special counsel is terminated we ask a Judicial Panel to evaluate the reason given by either the president or the acting attorney general. The other solution is after his terminated to reinstate. You say that you think our approach is better because it allows the investigation to move forward. Do you still stand by that . I do. I was just, i would propose a tweak i mentioned in my wrist and to have the special counsel initiate i think it is actually a good suggestion. And mr. Posner you said both of them are constitutional. You agree that keeping the special counsel in the game in terms of investigation provides most continuity . Yes, i agree. And i prefer the Graham Booker bill for that reason. To the public, im a republican. I want to make sure that mr. Mueller does his job and if he gets off script or does something wrong there will be a way to look at what he is doing. He is not above the law either. I want everyone in america to know that he will do his job without fear of reprisal. He will do his job protecting as much as we can buy the legal process. This is not about the president , it is about any president at any time in the future being able to be held accountable as an individual and there is nothing more important to me than to say without hesitation that everybody in america including the president can go and is under screening when there is an allegation that they have may have done something wrong. Thats what this is all about. Senator whitehouse. Thank you, very much mr. Chairman. Professor, welcome. You say in your written testimony. The power to pardon the lesser power to decline prosecution for any number of reasons. This lesser power you describe the regularized by the president into policy . So that they felt were actually enforcing the laws have a specific direction from the president as to that lesser power to define prosecution . Yes and it is typically subject to revision. For example, president obama could basically say we are not going to pardon people who violate our federal laws in colorado on physician of marijuana. So it is not unconstitutional for a president to say we are not going to prosecute. Francis the dr. Kids. Duck is a little tricky because it is not on the criminal side solely. Some of it is civil nonenforcement but yes. But for criminal the power to choose to enforce his equal executive in either case. Yes. But with criminal, it interacts with a pardon power in a way that it doesnt on the civil side. Otherwise you can have private prosecution on the civil side. You cannot have that on the criminal side. More power on the criminal side. First of all, professor posner, welcome. You understand that you are the son of judge posner . Is a great loss for the judiciary that he retired. He had an extraordinarily distinguished career and i think was one of the historic judges. Thank you. I have three questions that i am not going to ask you all to answer right now. As the chairman has said, you have ability to reflect on these things and then answer the questions for the record. I would like you to reflect on three things. The first is, it has been said in his hearing that the president cannot order an official to do something illegal. Does that mean that it is unlawful for the president to order an official to do something illegal and if it is unlawful to order an official to do something illegal, is there a remedy . A legal remedy for that. And obviously that would be the firing of special prosecutor would in fact be an act of and obstruction of justice. So that is question number one. Question number two, there is a certain amount of debate over the role of grand juries. I do not think anybodys testimony has touched on the role of grand juries. There is at least an open question whether the grand jury is the instrument of the prosecutor or whether the prosecutor is the instrument of the grand jury. As i understand it, was a grand jury is sitting, the grand jury has the ability to tell a prosecutor to go count sand and they will not give them subpoenas. They have the ability to demand subpoena and witnesses even if the prosecutor does not want to produce those subpoenas and witnesses. The us attorneys manual describes the grand jury as an independent body of government. So how does the prosecutor in his role potentially as a servant of a grand jury, engage in this whole separation of powers question . It is a little bit of an interesting wrinkle. I think that we should not overlook. We are doing a great job in the country now of overlooking the constitutional role of juries and grand juries. Our Founding Fathers i think we would find stunned and horrified. I think that was an extra at least a wrinkle into this analysis. Once you have a prosecutor who is now the servant or the instrument of a grand jury, does not affect in any way, the ability of the purity of an executive authority . The third is the 25th amendment. Section 4. Which says that levis president and a majority of the principal officers of the executive departments can actually remove all executive powers from the president. They can at least temporarily displace them from office. So if the Vice President and a majority of the principal officers of the executive department have the power to remove all powers, from the president , would it not be at least logical to presume that a similar body consisting of the Vice President and a majority of a principal officers of the executive department had to sign off on the firing of special counsel to would it be closer to the constitutional scheme if you avoided the judiciary entirely and established that the same panel that is already in place of the 25th amendment, had a voice in this decision. And that the lesser power say to the president , hold off you cannot fire this guy while he is investigating you. And it assumes in the greater power of removing all powers from the chief executive. Those are complicated questions and i look forward to your responses. I appreciate your expertise in the panel and i think the chairman. Senator tillis. Thank you, mr. Chair. Thank you gentlemen for being here. I think in some of the opening comments since i am one of the sponsors of the bill in question today that i talked about my motivation. Professor, you and i could probably get together but i doubt we would see i to i on ideological issues. I have to go back and explain what my motivation for this bill was. I think that the, at the time back in august we had a lot of things that were going to for this committee over the past year or so. We had a significant degradation i believe in the reputation of our fbi and the department of justice over the past eight or nine years where there are a lot of people calling into question what is going on in what i consider to be the greatest Law Enforcement entity that has ever existed. It was degrading in the public consciousness. My motivation for this bill and mr. Duffy, you said something i think is important because we have the retroactive date. It is something we already decided we had to come out of this bill moving forward and simply say that it is applicable to anybody in the role after this bill is enacted. My motivation was actually to remove the distraction and to eliminate what i call a spiraling of the narrative out there that was not based in any factual, anything in the record i should say. The president intended to remove special counsel. It became something that spun up through social media. Everything is i dont know of any actions the president took that people could say that he was moving toward removing special counsel. My goal is to get something out there to discuss that maybe there is an opportunity for us to assert some level of check and balance in place. And it is very difficult to do that when youre in a majority. Generally speaking, people advocate for these bills when they are not in a position of majority. And particularly when you are president , and the same party. And i thought it was important for the purposes of other matters that we should bring before the congress for someone to step out and do it when it is difficult. Not just when it is easy. Professor, when you made a public statement, i was campaigning, generally support his policy and i think this president will do well as the commanderinchief. But there is a role we have to play to kind of lower the temperature and let the process play out. That is my primary motivation for filing this bill. And i would like to believe that their members on the other side of the aisle that if they were in my position, if this were a president clinton, and they would have most of the been some sort of investigation going on because of the meddling with the russians and the election. I dont think anyone disputes that. That they wouldve had the courage and conviction in our role in this process to put forth bill and would i support the president completely. Now, i also think that we are not here to clip anyone president swings but to create a sense of a check on any future president. I want to go to mr. Duffy. I do believe but the retroactive provision would make this more consistent with senator graham and senator bookers bill. Another thing we talked about, in our original proposed bill was codifying the rules that existed in the doj. Im wondering whether or not it would make sense to him or to a point where we are saying you simply have to follow whatever rules are in place at the time the action took place. In other words, not codifying the roles that exist today but as things change, how do you think that either makes our proposal better or worse . There are two alternatives to that. One that you could say they have to be for they have to follow their own rules that are in place of the time of firing. And i actually agree with the professor vladeck because it is already galore. They state agencies must follow the rules. But it would be kind of weak because then you can refill the rules. So i think what you would say is it has to follow the rules that existed at the time of appointment. And that again has a certain retroactive effect as i discussed in my written statement may think it is constitutionally troubling. I will say that i, the procedural rules get best judicial review which are sort of shared by the two bills. Slightly different ones. I think they are a good idea. And bring some degree of certainty to the process and the retroactivity provision would just make that separately severable because there would be other claims like the ones that were adjudicated after the firing of archibald cox. And if there is another action they should be adjudicated altogether and rapidly as suggested in your bill. Thank you, my time is up. We will submit. Thank you for your statements. We will submit questions for the record and i appreciate you all being in here today. Thank you mr. Chairman. Klobuchar. Thank you all be pure professor posner you talk about one of the greatest crisis in history since the civil war. When we discussed the history of watergate i think one of the most concerning parts for Many Americans is the concept of government officials believing that they were above the law. Not accountable from awful activity. What set watergate apart . I would say there were two elements. First the sheer magnitude of what the Nixon Administration had done. Including burglary of a criminal case. Political espionage of all kinds. They had been dirty tricks of various sorts in the class but the Nixon Campaign was significantly worse. And then second of all, the obstruction of justice which was outrageous, pervasive from, it is hard to exaggerate how significant that was. Other president s may have hesitated about appointing special counsel in particular cases as i mentioned truman fired his special prosecutor but the lies and the extent to which nixon and his aides covered up these crimes were unprecedented. And Justice Scalia talked about how there would be political checks, right . On the president in such a case. You point out the shortcomings of this view in your written testimony francis, that nixon did not base another election. Can you talk about how the independent counsel was intended to reign in those types of abuses . The problem with this view of the political checks, impeachment can occur but it is of course very difficult. The president might face another election but in nixons case he did not. I also want to emphasize that the whole point of political espionage during an Election Campaign is to undermine political checks. That is what you are doing. Spying on your opponents so you can get advantage over them. If you succeed the voters cannot hold you to account because they do not know about it. They do not know they were deceived. Independent counsel says they tried to correct this problem by creating a special prosecutor later called an independent counsel who could not be fired and who had much more independence than the Current Special prosecutor does. Because of where even if you could not be fired, the Justice Department or the white house would in other ways tried to influence his investigations. Thank you. Professor vladeck, and if you would like to chime in, if i do not ask this question my daughter will be angry. She is in his class on constitutional law. In your testimony professor vladeck you talk about how the special counsel regulations go a long way toward providing an important check i asked Deputy Attorney general i asked about the regulations can answer that in 30 seconds . The checks built into the relations is removal provision. Special counsel about his jurisdiction is controlled by the attorney general, he can only be removed for the reasons set out in 600. 7 d. I think that is a check and i think that we are here today because the question is how do we ensure that the check is more than just on a piece of paper . Okay. Professor . Say hello to abigail for me. She is trying to decide what you want to be a lawyer great comedians are told that she wanted to talk to your colleagues. I know that you sent her photos of college classmates that decided to do comedy and did not do very well. It was very effective because then she didnt go. You know parents tend to hunt the kids to go to law school rather than be a comedian but [laughter] i know the senator rankin is coming up here. I do know theres a big difference between having something in a regulation with the executive branch has chosen to limit itself and when he tried to put that in a statute, it really does raise very serious constitutional concerns. And it is going to have to be defended in court by the solicitor general and he has not maybe you know to survive a president ial veto and it may just be a big waste of time where you all on this, in the world s greatest Deliberative Assembly can monitor president s when they misbehave and you can decide what is good cause and not good cause. Not some judge. And i would say that actually, if you did that in a bipartisan way, the entire country would stand up and applaud. Thank you. Senator kennedy. Thank you, mr. Chairman. Benjamin, you guys remind me so much of law school. Its we will i have listened with a lot of interests. You all are obviously extras on the law. Im assuming opinions about the efficacy of implementation and execution of that law as well. What kind of job do you think congress has done so for and investigating the alleged activity of russia in our election . In my written testimony, i suggest that although technically the house of representatives is a body that initiates impeachments, it is by nature very partisan because he of singlemember unlike the senate. The senate is actually structurally the place where america has to come together because most members of the house of representatives have districts that lean far left or far right and you have to you know youre only two years it was with my primary. After about their base. So what kind of job do you think congress is done so far . The senate is better structure than the house and it could be better structured if you create a mechanism that builds bipartisanship into the oversight. It is okay so far. I am a top greater so maybe a b. What about pass or fail . How about you professor . I was not going qualified to evaluate what congress has done. I will say that in watergate, both congress and the judicial system were absolutely essential. There were complementary. They help each other. And that is why the cover was uncovered. I would give an incomplete if it was a grade. Professor pozner mentions watergate. I think that example is a powerful example of how there are moments even in modern times where the separation of parties is more powerful for his less powerful than the separation of powers. I am not sure we are there yet. I have concerns about for example, statements of the chairman of the house Intelligence Committee has made really in the investigation. So the history books are written after the fact senator and i think there is still time but so far, pretty incomplete. Professor . I think the most important thing this body should look into is any allegation or possibility that anyone russian activist or nonstate actors could actually hack the voting machines. That would undermine the credibility of the entirety of the election. I think that although allegation seemed to be made that perhaps ads were purchased by other people, i think those politically are just simply less important than the question of where do the machines commented that the right votes . They say that could be deceived if an ever purchased on facebook. I think it is hard to believe that after the Lengthy Campaign were hundreds of millions of dollars were spent and the American People got to see the live debate between the two president ial candidates, that they were the difference between the two candidates. However, the voting machines, that is a primary importance. It seems to me that there are a multitude of issues but to mainlines at least in my mind. That is first, to what extent if any, and i just add that if any to try and appear to be fair. To what extent did russia try to interfere in our electoral process . The second issue is, did anyone conspire with russia in doing that . I see the special counsel looking at the second issue. Betsy congresss obligation is to look at the first issue. To think that we have used all of our powers in looking at the first issue . Or have we been to differential to this special counsel . Senator, you are about to listen to both issues and i think both issues are worth looking into. I agree. You should look into both issues. In the watergate era, the senate and the house looked into the conspiracy issue. Yes. That was a key part of the series of events that led to president nixons resignation. And i will just add senator, until either house or committees thereof are subpoenaed with witnesses who are not going to testify and are actually exercising the full enforcement oversight powers, i think there is more to be done. And i agree that you have the power to look into both issues and subpoenaed people with respect to both issues. I just hope that the priority of the issue, not just this campaign but all future campaigns is the boat account. Because it goes beyond this election or this campaign. But what you are saying, until we stop acting like a bunch of weenies and subpoena people, we will not get what we need. Is that what you are saying . It certainly seems to be the historical experience. [laughter] thank you. Senator blumenthal. Thank you, mr. Chairman. I think that there are two questions, the russian interference in the election which has been established by the Intelligence Community beyond a doubt. And then potential collision or conspiracy involving the trump campaign. But now theres another question which is whether or not the president of the United States or any official under his supervision is obstructing justice. Whether the president of the United States is interfering with a lawful enforcement of the laws of the United States. Which would be a violation of criminal law. And put aside the legal niceties, special counsel and the president right now are on a collision course. We are heading toward a constitutional confrontation. Between special counsel and the president which is evidence 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 james comey because he was free of the russian thing. The air force one statement that he dictated as the explanation to be given by his son donald trump jr. For the june ninth meeting involving not only his son but his soninlaw and his Campaign Manager with Russian Foreign agents. A slew of evidence now under investigation and more, that cannot be disclosed here. Involving potential obstruction of justice. And so 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. And that is, in some sense an enforceable question. The good cause standard which is now in the regulation and which would be in the legislation that my colleagues and i have crafted. It has to be enforced by someone. And normally, in our democracy, it is the courts that enforce the law. And so, i take your point professor that congressional oversight is a good thing. But congress does not enforce the law and it has some supervisory jurisdiction over justice, this committee in fact has the oversight over the department of justice and the fbi which is why we are conducting our own investigation. But a grand jury is an arm of the court that provides special counsel with some protection but ultimately this constitutional confrontation that looms very close can be avoided only if the law is enforced by a court. Mse this firmly upholding that reasoning by a seven to one majority. I recognize that the court may not have a perfectly consistent line of reasoning on these kind of cases. Because it is complex and because it is political. What i would like to know, professor amar and anyone else after you is how you would avoid this constitutional confrontation without the courts involvement. So on the first point, two points. One, you fire or he fires mueller. Mueller gets reinstated and then he says fine, i am pardoning everyone. And he can pardon anyone other than himself constitutionally. And unless the American People or this senate conducts oversight, Richard Nixon even after the nixon case was handed down, had the Lawful Authority to pardon don mitchell and all of the others. Because of the pardon power at the end of the day what prevented that was oppressed the American People and this body, the senate of the United States ultimately said we are not going to let that stand. You actually have the part of the process even if there is a finding of fact, after the investigation concludes, after special counsel is permitted to do his work about whether or not there is a violation of law and that perhaps only impeachment you are talking about the remedy. Not the special counsel function of factfinding and investigations. Counsel is a fact finder and investigation and the fear that our proposal is designed to address is that the factfinding will be aborted. It will be cut short. It will be ended, unlawfully and that the American People will never know what happened. The president does have the pardon power. And i grant you, it is unlimited. Apparently. And we can talk about the possible limits that may apply. Ultimately, an investigator, and enforcement officer which i was for many years, uses a grand jury or other investigative tools to make findings of fact. And to possibly disclose those facts that may lead to remedies. Whatever those remedies are. And there cannot be remedies unless there are findings of fact. I know my time has expired mr. Chairman and i hesitate to cut short any of the distinguished witnesses that we have before us. I would never do so in their classrooms. But i appreciate your indulgence. Thank you and if any of the witnesses are permitted to answer those questions i would be delighted to hear them. 15 seconds or less. Caspar weinberger even view of the for the findings of fact. Party power really looms over all of this. City impeachment power is the ultimate power for that specific thing and you get to try cases of impeachment was the house nixon could have pardoned his henchmen. He might have even been able to pardon himself. That is considered he did not. So there is great political constraints and using the pardon power which is why all these other things we are talking about are so important. I just do not know why we are so afraid of the courts. I want to apologize to senator coons. Not only did senator blumenthal get to go first you got to go over for two minutes [laughter] thank you mr. Chairman. Welcome, i want to start with a general question. Versus olson. Was it rightly decided . Did the court get it right . No, i think it was clearly wrong we decided on multiple grounds. It is since it seems very important to all, it really depends on good count. It is important. We are talking about counting votes and i count them differently and so, four times Justice Thomas has actually in four different opinions cited the Antonin Scalia defense. Including the last term. And i see Justice Neil Gorsuch as being very much of the same view. Although he has been on the basis of everything he says in the way he approaches things, a mutual friend and colleague senator lee is no longer here. I would defer to him for the justice in which he clerks but i would count that as three. The chief Justice Roberts once in the case of professor vladeck was involved in. So that is for. Here is what said and justices on the Supreme Court do not usually talk very publicly but this is what you said at stanford in public remarks in 2015 quote the morrison descent was one of them with dissents written and every year gets better. And now we have Justice Kennedy was part of the majority in the case and rights yes, senator blumenthal, 75 years ago this year, the Supreme Court in a landmark decision at this coming term in a case called barnett which was one of the great cases of american liberty actually said you cannot be forced to lose the flag, this is going on today in the nfl. But that overturned the decision which was just two years before. There was versus hard when its overturned and lawrence versus texas. The court had not said it was going to be for himself you have to see these overturning so i actually do predict that if you passed this, either of these bills there is a very serious threat and having we not even talking about justice breyer. Wrongly decided, there are many different things. Not everything that was said is right. I agree with my distinguished colleagues that there are a lot of things but some things especially on inferior officer what they are. The opinion was correctly decided. And 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. Let me clarify. My question is much more a matter of first principle because we have an obligation to follow the constitution whatever interpretations may come from the court. So morrison versus olson was correct because the court recognized that independent counsel statute was strengthening the executive branch by enhancing the 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 there are two features in statute that were really bad policy. I do not think it makes it unconstitutional. I think the decision was rightly decided. I think the appointment of the independent counsel by the courts is the most troubling and i think that the Justice Scalia was right and that it was unconstitutional on the grounds. The good cause removal which we discussed here i think could be construed in the constitutional fashion because it is a big standard and therefore it could be construed, consistent with standard principles to avoid the, and a potential serious question of the constitutionality because it could be construed to preserve the Supervisory Authority of the department of justice officials. Professor amar. Professor posner says congress has already restricted the president s power of Law Enforcement through Civil Service protections. Do you agree number one that Civil Service protections are constitutionally valid and then number two, if so, how would you respond to that analogy . Thank you, senator. Civil service actually doesnt apply to offices of the nicest but only to employees. The remedy is not always reinstatement. Sometimes it is and i do talk about that in my testimony. In any event, in order to be constitutional, Robert Mueller has to be inferior. This is what Justice Scalia said emphatically and generated for the court. Fear means inferior and having, it doesnt mean small it means inferior to someone else. Inferior to the Supreme Court and if he cannot be fired as well, it is hard to say he really has the superior. Because of follow direct orders to the president of United States within the lawful discretion that he has. It is hard to say he is, words matter, inferior means inferior and in my testimony, i completely concur with your view that even if im wrong about morrison, you have an independent obligation about constitutionality. Every week actually, undergraduates that and they invoke your name here because even if we do not agree on all the constitution means we actually believe that senders have independent obligation to take constitution seriously and i have always admired that feature of your service. Is such a terrible for law students. Is very hard to fire me. Im not a principal officer in the state of texas. I would just add that the special prosecutor position is a creation of the Justice Department. The budget is controlled by the Justice Department. The investigative staff said the special counsel tags can be vetoed. There are many respects in which he is inferior so the good cause removal provision is not prohibited from being removed. To prohibits him from being removed for cause. So thats another respects in which he is inferior to the attorney general. Thank you for your testimony. Senator coons. I would like to thank you all for holding this hearing. I would like to thank our experience and constructive panel for your testimony today. I would like to especially thank you senator for craftiness act. Im also grateful to a number of other colleagues. Ranking member conyers and congressman jones for introducing his bipartisan companion bill on the house. And senators graham and booker white house and blumenthal. The fact that this group of members from across the ideological spectrum in both chambers have engaged in legislative efforts to try and provide some modest effective strengthening of the special counsel, i think shows that this goes beyond a temporary partisan concern and reflects a deeper concerns. Something that we just test special counsel muellers ongoing investigation. It is an important issue for all americans. And it goes to the integrity of our government. I respect and shared the similar statement that the outpouring of motivations and Going Forward go beyond what is in front of us in terms of special counsel muellers. And reflects a much deeper individuals have written is expressing their support for the value of the legislation. I would like to submit the record a letter to that effect. Without objection. If i might, just to pick up some of the questioning just was. From senator cruz, is it possible for commentators including even a justice, to appraise Justice Scalias dissent in morrison . Yet, it is still to be good law. In fact i think that you said the Supreme Court has cited morrison dozens of times without overruling any portion of the decision, is that correct . Yes. So the progress and mentioned the speech at stanford. I went back and i reread them professor kiggins 2001 harvard article on president ial ministration patient was out of her way to say that the theory is wrong. And so i do not know why we cant simultaneously be able to view that there are great opinions written by justices and history with which we disagree on the constitutional law. Bucket is, is morrison good lockley. To me it is and i think for the majority of the court it has been. I think you made an important statement earlier which is that all of these bills, what they do is guarantee a right to judicial review that already exists. Can you briefly explain that . Sure, i mentioned a case from 1973. The case is based on the theory that when you have a regulation protecting then, the special prosecutor, the regulation is enforceable. Whether it is an in judgment or through a super injunctive relief. And they ended up upholding that after he violated the regulation, when he fired the special counsel for special prosecutor, i think you can make the same argument about the existing regulation. The 600. 70 actually could be enforced today. If in fact that there is a provision in a regulation i think is 600. 10 that i think could be argued to prevent such enforcement. That provision did not appear in the watergate era regulation. So the open question as to what role that has on the ability to enforce regulation today. Could argue the fact that the professor you have the special counsel bills your talk about are significantly less intrusive. The power of the executive and the independent counsel. It was an issue in morrison. Can we take a quick review of those that in his dissent he was particularly about the idea that the independent counsel is appointed based on a referral from congress under very deferential standard and actually proved by a Judicial Panel. Is that the case now with special counsel . Is not the case but there is a major reason why these bills are much less intrusive on president ial power. The appointment is different. The oversight also different . There is significant independence, budgetary independence and independence over investigation. There is, there is is somewhat ambiguous whether they had to follow up with Justice Department regulations. Is a different than it was in that the decision remains with an executive . The removal provision is weaker both in terms of the substance it includes reasons that were not in the removal provision of the independent counsel. Again it is entirely within the authority of the attorney general. And the last area of questioning. The core argument in the dissent by Justice Scalia is that the president must have complete control over Law Enforcement function. The testimony states that the founders never believed that the president should be given complete control over Law Enforcement and instead, that there are many other restrictions in the presence control of Law Enforcement as we consider whether or not the protections we are trying to advance violate separation powers . Well, it is a complicated question. To be brief, many people put a great deal of weight on the founders understanding of the constitution. In this particular case with the founders views, they were fairly ambiguous. There are, there is evidence that they would never have taken the position that Justice Alito attributed to them. They explicitly in the text of the constitution gives congress the various powers and opportunities to control how the president uses his executive power. Including by defining offices for example, the involvement of the senate and appointments and of course, congress is budgetary power which can be used in many ways influence how the president actually ends up exercising executive power. This idea that the branches are completely separate and autonomous is not actually in the constitution. They influenced each other in many ways. Think its all of the panel. Given suggestions. Some are tactical but in any event all of them constructive. I very much look forward to working with my colleagues to advance the legislation. Thank you. Senator franken. Senator hirono, were you here before me . I think you might have been. That is a no, okay. Because i am kind of little, having a little difficulty with the issue because it seems to, i am not a lawyer. I am a comedian. [laughter] we did not discuss this in a comedy school. There are a couple of things i just want to discuss that have been said that may not be completely germane to the constitutionality of the statutes. There seems to be arguments on both sides and maybe this will have to be decided if we pass these in court. A couple of things. Senator tillis, who i admire for putting this legislation forward said that donald trump has never wrote Brenda Mueller but i think that he has. By saying that he would cross a line if he looked into his finances. Now that to me, when he says crossing a line, we never quite know what the president is saying and any one time. Nor do i necessarily think that he knows. [laughter] but it sounds like a threat to me. And i think that his finances may be very germane because we know that in the kremlin playbook that part of what the russian playbook has been, with the kremlin playbook has been is to compromise someone to get their hooks into somebody and be able to use the ability that someone is compromised to control them. Also i cannot remember but i think it was senator tillis that said, if the president clinton or if Hillary Clinton had one and was president , there would be investigations into her because of russia. But i think it is very clear that russias on one side here. I do not think there is any question which side they are on. I believe that if she had won, they would be investigations into her because the house likes to do that kind of thing. I want to also clarify something not Jeff Sessions recused himself. This is senator graham says, he recuse himself because he had been with a campaign and i do not think that is why he recuse himself. I think he recuse himself because he lied under oath to the committee and said that he had not met with any russians during the campaign. And in fact, he had. I think that is why he recuse himself. I do not think he necessary would have had to recuse himself just simply because if he had not dealt with the russians for example. But i think that he kind of forced the situation on himself. Finally, i will try to get to a question. I do not know why and this is professors are Akhil Reed Amar why the president cannot pardon himself. But it is not settled about whether he can find a special prosecutor. I would like to get i would like to get some opinions on that. I would go with professor amar first. Thank you senator. The first constitution, it is the supreme law of the land. It is law. The first principle of law is the rule of law. When the basic principles of the rule of law was all the way back to rome, to cicero, that no man can be a judge in his own case. And that principle has been, we see this throughout american so if you cannot be a judge in your in case you cannot pardon yourself. It is an Impeachable Offense to commit treason, bribery or other high crimes and misdemeanors. If i cannot bribe you, you cannot drive yourself. And if i cannot bribe you to pardon me, you cannot bribe yourself to pardon yourself. So that is the basic you lost me there. Were the president and i want you to pardon me so i give you money. That would be an Impeachable Offense. Im giving the bride, the other person would take the bribe. You cannot do that. The part that i did not get was bribing yourself. Son of the same person who wants the pardon is a one giving the pardon. That is like bribing yourself. Youre giving yourself a benefit for personal benefit self in the same that you cannot be a judge, in your own case, you cannot be a pardon or in your own case. Does anyone have any other thoughts on that . Because i do not just did not seem like it is decided. It is not clearly decided. Except the first principle of prudence. You said it was settled. And i dont settled and decided to me are not the same thing. It may not be the right word, thank you senator. We can have one of the other witnesses. I want them to forward without that we need to move on. Yes. Professor amar just apologized to me. [laughter] just quickly, a measure there really is such a principal that professor amar describes but if there is a nonselfdealing principal in the constitution that it would prevent both self pardoning and firing a prosecutor who is investigating you. The two things are basically the same. I just think it is in classical terms, the answer to a question may remain purely academic. Because of the point at which the president is going to porton himself, i think that is when the house with consider exercising the impeaching power. To wrap up, my question was, i do not get what you think it is settled that the president cannot pardon himself but it is not settled when he can fire the special prosecutor. He just nodded when professor posner so that they are the same you had them as opposites. Because we do not know if he fired mueller, not because of his mueller pursuing him but because of mueller pursuing manna fort or donald trump jr. Or eric trump or anyone else. Even though they are friends you can pardon them or your brother. It has been done. That would raise different issues. We would need to know why the president was firing mueller and whether that was about saving his own skin or saving someone elses skin. Okay i am sorry. Senator thank you, mr. Chairman. My understanding is that they have said that the two pending bills are narrower than statutes of held in morrison. Other than the pre removal judicial review. Is that correct . So until the Supreme Court does overturn merits and it is the law of the land. Congress cant pass legislation such as what we are contemplating. This is a question for professor vladeck and professor posner. We heard testimony by the fbi director. The president on numerous occasions had oneonone conversations with him. Put pressure on him and certainly the way that director comey testified in the meeting that he had. In one, the president discussed the status of director comeys job. And told him i need loyalty, i expect loyalty. And in another meeting, the president pressed director comey about the investigation a recently fired National Security advisor michael flynn. And said, i hope you can see your way clear to letting this go. He is a good guy, i hope you can let this go. So based on your focus on constitutional questions regarding the importance of independent and accountable Law Enforcement, to the president s statements of director comey in those instances, give you cause . There will certainly be pause. I think they are alarming statements whether or not they rise to the level of what federal law defines it as obstruction of justice. Briefly, the special counsel regulation expressly contemplated perhaps with the intent to interfere with the investigation. So it is already in the mandates. So with these, what do they reinforce for you to protect director millers investigation . Certainly. I absolutely agree. You do not want to have obstruction of justice and clean all of the facts. Certainly this is alarming. From that standpoint. If you believe that the president might fire someone who is investigating him, then the natural response for congress is to try and give that person some protection. Yes. So lets get to the president pardon of joe arpaio. Before the sheriff even asked for a pardon, the president pardons him. It broke longstanding practice of president s of both parties and several key ways as i mentioned. The sheriff did not even apply to the department of justice for a pardon. Showed no remorse, and it was, what is happening now is the Justice Department is now seeking to vacate the conviction. Are you concerned that the president pardon sends a signal to this is for both of you again. To the inner circle not to anticipate into muellers investigation because he would have their back and pardon them for example for refusing to testify with a court order . You know, i think it is a relevant consideration that one would want to worry about. But i guess in the end, they know that he can pardon them. Nixons agency knew that nixon could pardon him and of course he never did. I would not want to draw any strong conclusions. Well when the president pardons someone that did not have to be pardon says a lot. I think that the pardon is a good example of the very real prospect that a pardon can be completely unsupportable as a policy matter. And deserving of a political and public backlash. And still in the president s constitutional authority. To other one of you believe that the role of the Justice Department is taking to seek vacating further forth need to have special counsel with independence from both the attorney general and Justice Department . I think there is any number of episodes that reinforce the need for there to be some independence in the Justice Department. I do not think that is unique to the last eight months. He said that their american history. To my mind, efforts to create permissible independence, permissible structure for separate the Justice Department from the politics at the moment should be pursued to whatever extent. Do you agree with that . I do. When you look at the record of the 1999 hearings about whether the independent counsel law should be renewed. A number of Justice Department lawyers testified that they frequently felt pressure of various sorts. Not necessarily being bossed around although that happens but they do not want to investigate their friends. They did not want to get in trouble with their ultimate boss. There are concerns about this. It is an important reason to create forms of independence. Thank you mr. Chairman. Senator lee. Thank you, mr. Chairman. I would like to the back to professor posner. Why is congressional oversight not enough . We have an investigation going on on some of the matters being investigated right now. Why is the opportunity to investigate through congress is oversight functions not adequate . Well, again, we use a watergate as an example. It occurred in a courtroom when the judge told the various lowlevel watergate burglars that he was going to give them extremely long sentences. 40 or 50 years for a minor crime. Unless they started talking about what their superiors had said to them. And so, congress does not have that type of power. Nor does the court also, the trial also, created a lot of public attention about watergate. Congress is able to command public attention. Indeed, were really broke watergate was the saturday night massacre. That is why it went from something that people knew about, something everyone in the country was talking about. That was of course the case where the executive branch official, not a member of congress, was fired. So there are many many reasons why the Law Enforcement side is very important for this type of problem. And yes, congress does have the power to remove people from the executive branch. It becomes a Political Action rather than a judicial action. But we do have that power. And so, if the concern is number one that congress cannot get public attention i beg to differ on that one if congress wanted to do it. Number two, if there is a concern that congress will not do with all sorts of additional concerns that arise out of that. It becomes a question for the people, one that i think would cause great concern. In a few minutes i have left, professor, i would like to turn to you. If the president has authority to give a particular order, and the president in fact gives that were, to someone Holding Public office under the president s authority, cannot be obstruction . If that person doesnt carry out that order after it is given. Is that obstruction to remove that person or is it obstruction to give the order in the first place . Motivation might be very important. There are sorts of things are permissible. And for example boarding for a bill because you think it is in the National Interest but if someone paid you to do it it would be a crime. So obstruction often turns on motivation. John manning of the Harvard Law School has argued that actually in general, it is good cause. In this is not decided and that is one of the reasons that you mentioned before senator, it is actually a problematic term. It is good cause to fire someone if you give them a lawful order. If you have discretion to do this if your discretion to do if i take to do something and you do not a think it might be good because i think it might be good cause but if the bill does not say that. If it did, it would be, i do not think the bill is wanted because they want to create independence. But you cannot be both genuinely independent as the constitutional requirements. They keep trying to create statutes creating independence and it keeps jamming with the gears that the framers set up. Whether you agree with Justice Scalia all the way down the line, he did emphasize inferior means inferior. He puts in the majority that is called admin. It commended a majority of the Supreme Court. That is one of the many reasons i think morrison is actually very vulnerable. Because of the edmund test. Also judges appointing prosecutors was horrible. Even though two of the witnesses have actually said they agreed with morrison versus olson on the facts. Which is a violation of separation of powers 101. What youve identified, if the president gives an order it is not obstruction in the absence of the special circumstances. And you have to carry it out. If you dont you should be sacked. And if you cannot in good conscience carried out, the honor and law is to resign. What do the bills actually do . If absent the circumstances, the president can give the order and that does not amount to obstruction of justice. Any failure to carry out the order amounts to good cause. What is the purpose of the bills . Youre hoping the judges do not agree with you and me and dean manning on that point. I disagree. I think the bills are meant to account for the possibility that you can advocate where everyone agrees that was not good cause and whether firing was purely for legal reasons. And so i do not, i think if we are at the point where we are debating whether obstruction committing an act of obstruction of justice is good root cause to remove a prosecutor. I think that if we are even having a conversation i think it explains why the bills have been introduced. Mr. Chairman, i would like to engage on the last point if i could. Were now in one third round you have five minutes. Thank you, mr. Chairman. You are kind and benevolent in the state of North Carolina it is a wonderful place. [laughter] if that is the case, the case that you described, everyone agrees. We have a problem. If everyone agrees why is it that an appropriate moment for congress to use exercise its authority . It may well be. But i guess my concern is, i do not read the constitution is saying that impeachment is the exclusive mechanism. Through which the executive branch can be checked in this regard. I do not know that i disagree with that point. But i do not think it is the point we have to make or the point that we are in fact making. I think the other point is not that there is any, we are not asserting that there is any affirmative denial of the existence of an alternative remedy. The mere existence of the three branches of government, and the way that they are set up, creates the branch as the inevitable byproduct. 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 not. We could have done somethingn else that mandates review. One of the features of the bill compared to the status quo, under the status quo if the special counsel were one you can bring action to the board. But youd have to go to alone district judge with the ordinary mechanisms of appeal. Both create expedited procedures for the re district court. Youb so, even if you believe as i do that the review mechanism is in place, this is a better, more efficient and if i may, less likely to draw an outlierudge district judge way of solving the problem. But that is still, since we talk about the massacre they work without an ethics in government without anything like this. A it worked because the American People because the house and senate decided what was good cause. And that work better. If were doing the history and the judge ruled in 1973 that the action violated. Way after the fact, that wasnt what exercised everybody the day after the thing. Were gonna let senator please direct the discussion in your remaining time. Thank you. The overriding concern that i have over talking about this isn that bad things happen when we depart from the prebranch structure of the federal government. E we have one branch in charge of executing loss. I dont always like the way that every president chooses to exercise that power. I frequently disagree with president s of both politicallawn parties and the way they have chosen to force or not enforce the law in certain areas. We do live in a time that echoes back loudly the fact that their dire consequences from departing from that. Those of us who serve in the senate serve in the institutiona over the last 80 years it has delegated away the lawmaking power. We passed laws that have broad statements, we say that we shall have good the we delegate agencywide the power to make and enforce with law in area ask. From that moment forward so those who work in agencywide are well educated wellintentioned highly specialized individuals but they dont work for the people in the cant be fired by the people. People in my state can fire me once every six years. H peop other representatives can be fired every two years. You can have that kind of accountability with the people in the executive branch to agencies. When you combine that power to make and enforce the that complicates it further. Thats why these are legitimate concerns. It is not entirely satisfactory to say that either Congress Wont do it right or the president want to write. Human beings are fallible, they are mortal. They may be redeemable but theyt will make mistakes. You very often can compound the problem when you depart further from the system of checks and balances put in place. Thank you to our witnesses. Thank you senator gentlemen, thank you for being here. We will keep the record open for a week. Im sure therell be more questions for the record. We appreciate your time and i appreciate you being actively engaged in this committee. The meeting is adjourned. [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] join us for the march for Racial Justice take place in washington. Africanamerican and indigenous groups will march from capitol hill past the Justice Departments into the National Mall for speeches calling for equality. Speakers include leaders of a native american and activist organizations. Live coverage starts at 2 30 p. M. Eastern on cspan. Next week, former chair and ceo of equity facts, Richard Smith testifies before congressional committees about the companys recent data breach. Tuesday he will go before the house energy and Commerce Committee while on wednesday he testifies before the Senate Banking committee. Live coverage starts both days, 10 00 a. M. Eastern on cspan three