Should a Special Counsel be Allowed to Legally Challenge Their Termination? (S. 2644)

What is S. 2644?

(Updated December 17, 2019)

This bill — the Special Counsel Independence and Integrity Act — would specify that a special counsel can only be disciplined or fired by an Attorney General who has been confirmed by the Senate, or the most senior 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. The special counsel would have to be informed in writing of the reason for their removal and could request a judicial review of their firing within 10 days.

A legal challenge filed by a fired special counsel would have to be heard by a three-judge panel within 14 days of filing, which could find the special counsel’s termination to be justified or in violation of the good cause requirement, in which case the special counsel would be reinstated. The special counsel could appeal to remain in office while proceedings are pending with the court making a determination. All staffing, documents, and materials of the investigation would be preserved while the matter is pending.

Argument in favor

This bill would 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 face calls for impeachment.

Impact

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

Cost of S. 2644

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Lindsey Graham (R-SC) introduced this bill to give a special counsel the opportunity to appeal their termination and be reinstated if the firing wasn’t for good cause:

“Special counsels must act within boundaries, but they must also be protected. Our bill allows judicial review of any decision to terminate a special counsel to make sure it’s done for the reasons cited in the regulation rather than political motivation. I think this will serve the country well. I look forward to working with my Democratic and Republican colleagues to make this law.”

Original cosponsor Sen. Cory Booker (D-NJ) added:

“A nation of laws cannot exist if the people tasked with enforcing them are subjected to political interference or intimidation from the President. The Special Counsel Independence and Integrity Act will install a needed check and ensure that Special Counsel Mueller and his team — and any future special counsels — are able to follow the facts and the law wherever they lead. Congress must act to advance this bipartisan legislation as soon as possible without any further delay.”

This legislation passed the Senate Judiciary Committee on a 14-7 vote and has the support of three bipartisan cosponsors, including Booker and Sens. Thom Tillis (R-NC) and Chris Coons (D-DE).

Media:

• Cosponsoring Sen. Cory Booker (D-NJ) Press Release
  
• USA Today
  
• Washington Times