President Trump has once again raised the specter that he may fire Robert Mueller prior to the completion of his investigation. Many Democrats and now some Republican senators have suggested passing legislation to protect Robert Mueller from a firing “without cause.” But even if a law was passed and signed by President Trump, would it hold up in Court?
The Constitution states in “The executive power shall be vested in a President of the United States of America.” In Myers v. United States (1926), the Supreme Court deemed a law that required the President to secure the Senate’s consent before firing postmasters to be unconstitutional.The Court struck down this law because the Constitution “grants to the President the executive power of the government – i.e., the general administrative control of those executing the laws, including the…removal of executive officers.”
While there have been cases supporting tenure or limits on the President’s ability to fire subordinates, the most recent case on point suggests that there may be problems with the type of protections Congress are currently considering. Specifically, that an Article III Judge must sign off on any “good cause” to fire Mueller. In Free Enterprise Fund v. PCAOB (2010), the Court struck down part of a law that “not only protected board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists.” Many would argue that if an Article III Judge must approve the firing, it withdraws the President from the decision as to whether good cause exists.
Of course, the details matter of any law that is passed, but don’t be surprised if a Court finds Trump’s firing of Mueller to be perfectly legal, even if Congress passes protections. Whether this would cause impeachment proceedings in Congress is another story entirely.