Pending legislation titled the Special Counsel Independence and Integrity Act states that only the Justice Department can fire special counsels and only for “good cause” — in effect codifying an existing Justice Department regulation. The bill would give the special counsel 10 days to dispute the firing in court. If a panel of three Federal judges determined that the firing was not for “good cause,” the special counsel would be reinstated. In the interim, his staff and investigative materials would be preserved.
Senator Lindsey Graham (SC-R) introduced the Senate bill (S. 2644) with cosponsors Senators Chris Coons (DE-D), Thom Tillis (NC-R), and Cory Booker (NJ-D). Representative Jerrold Nadler (NY-D) introduced the House bill (H.R. 5476), which has 110 cosponsors to date.
On April 26, the Senate Judiciary Committee approved S. 2644 by a vote of 14 to 7, advancing the bill over the objections of opponents who said it would unconstitutionally infringe upon the power of the presidency. Senate Majority Leader Mitch McConnell (KY-R) has stated that he does not intend to bring the measure to the Senate floor.
Judiciary Committee Chair Charles Grassley (IA-R) and three other Republican committee members — Senators Graham, Tillis, and Jeff Flake (AZ-R) — voted to approve the bill. Senator Graham stated:
“It’s about a system for today, tomorrow, and forever that makes sure nobody, even the President, is above scrutiny. When we put someone in this spot, they’re in a political hot spot. That’s the nature of the special counsel, and I think we’d all be well served as a Nation to have a check and balance on that situation.”
The approved measure includes an amendment from Chairman Grassley that requires the Executive Branch to report to Congress when a special counsel is appointed or removed or when the investigation of the special counsel concludes.
Congress enacted the Ethics in Government Act in 1978 in the wake of the Watergate scandal to reassure Americans that alleged wrongdoings by high-level government officials would be subject to impartial investigations. The Act removed the responsibility for overseeing such probes from the attorney general and other Justice Department officials, providing instead for the appointment of an independent counsel.
In 1988, the Supreme Court upheld the law in a 7-to-1 ruling, determining that it “does not violate the separation-of-powers principle by impermissibly interfering with the functions of the Executive Branch.”
For more background on this subject, see the May 1999 issue of Congressional Digest on “The Independent Counsel Law.”
