September 26, 2017

Feinstein Speaks on Special Counsel Bills

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today spoke at a hearing to consider bills to protect special counsels from political interference. Feinstein’s remarks follow:

“Thank you Mr. Chairman 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 special counsel, as everybody knows, cannot be fired for anything but misconduct, dereliction of duty, incapacity, conflict of interest or other good cause.

Those regulations have been in place since 1999 and were meant to ensure integrity and impartiality when the Department of Justice has a conflict of interest.

They have been in place during both Democratic and Republican administrations, and neither their necessity nor efficacy has ever been seriously questioned.

Both of the bills we are considering today provide extra layers of protection for the special counsel.

They were introduced on the heels of reports that President Trump was contemplating firing Special Counsel Bob Mueller, a man who has broad bipartisan support, and who has served this country with honor and distinction.

I think my colleagues from both parties agree that firing Mueller would be a grave mistake.

For example, Senator Graham, star of stage, screen and radio now, has said that unless Special Counsel Mueller did something wrong, firing him, and I quote, “could be the beginning of the end of the Trump presidency,” end quote.

And Senator Markey has gone so far to say that doing so would be, quote, “a full blown constitutional crisis.”

Firing Special Counsel Mueller would be that much more concerning given widespread understanding that individuals close to the president, or even the president himself, have tried to tip the scales of the Russia investigation.

We’ve all heard President Trump’s reaction when Attorney General Sessions recused himself from the Russia investigation. Even though the attorney general acted properly, the president berated him because the recusal led to the appointment of the special counsel.

Several months ago, we also heard from former FBI Director James Comey, who testified before the Senate Intelligence Committee that he felt pressured by the president to, quote, “let Flynn go,” end quote, and to, quote, “lift the cloud,” end quote, even though an FBI investigation was ongoing.

Simply put, I have strenuous concern about President Trump’s 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.

Turning to the bills themselves: First, they both require good cause before the special counsel may be removed. This means that 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.

And the bill introduced by Senators Tillis and Coons would allow the special counsel to ask a court for reinstatement after the fact 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 joined today by a panel of distinguished legal experts, and I look forward to this discussion. I expect much of it will cover Supreme Court precedent and whether the precedent applies to today’s situation.

While precedent is certainly important in this discussion, I’m hopeful that we won’t let a discussion of legal theory prevent us from speaking about the real-world problem that these bills address.

We are aware that in 1973 President Nixon wanted to fire Special Prosecutor Archibald Cox, who was conducting the Watergate investigation.

But the Watergate special prosecutor could be removed only by the attorney general, and only for good cause.

Nixon’s order to fire the special prosecutor led to the “Saturday Night Massacre” and resignations of Attorney General Elliott Richardson and Deputy Attorney General William Ruckelshaus, who both determined there was not good cause to fire Cox.

Although Cox was ultimately dismissed, it was not before two Justice Department officials had sounded the alarm on President Nixon’s 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.”

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