Should a Special Counsel be Entitled to a Judicial Review of Their Firing? (S. 1741)

What is S. 1741?

(Updated July 1, 2021)

This bill — the Special Counsel Integrity Act — would specify that a special counsel can only be disciplined or removed by an Attorney General who has been confirmed by the Senate, or the most senior Senate-confirmed Dept. of Justice (DOJ) official who isn’t recused from the matter. A special counsel could only be removed for misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause including violations of DOJ policies; they would have to be informed in writing of the reason for their removal; and could request a judicial review of the removal.

Argument in favor

This bill would help protect the integrity of investigations carried out by a special counsel by shielding them from wrongful termination and ensuring they can request a legal review of their firing.

Argument opposed

There’s no need for these procedures to be put in place, as any administration that fires a special counsel under murky circumstances would be politically damaged to the point of impeachment.

Impact

A special counsel; courts responsible for a judicial review; the DOJ; and the Attorney General.

Cost of S. 1741

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Thom Tillis (R-NC) introduced this bill to support the integrity of independent investigations by allowing a judicial review if a special counsel is removed:

“It is critical that special counsels have the independence and resources they need to lead investigations. A back-end judicial review process to prevent unmerited removals of special counsels not only helps to ensure the investigatory independence, but also reaffirms our nation’s system of checks and balances.”

Original cosponsor Sen. Chris Coons (D-DE) added:

“Our constitutional order depends on a system of checks and balances, grounded in the fundamental premise that no one is above the law. Ensuring that the special counsel cannot be removed improperly is critical to the integrity of his investigation. I am proud to partner with Senator Tillis on this bipartisan bill to safeguard our democracy.”

Media:

• Sponsoring Sen. Thom Tillis (R-NC) Press Release
  
• Charlotte Observer
  
• CNN
  
• The Hill
  
• Vox