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This week I again called my U.S. senators and House rep, urging them to pass legislation to protect special counsel Robert Mueller. The latest GOP talking point is a legally absurd claim that such a law would be unconstitutional.
That theory relies on treating Antonin Scalia’s opinion the 1988 case of Morrison v. Olson as if it were binding precedent. But Scalia’s opinion was a lone dissent against a 7-1 opinion that upheld the post-Watergate independent counsel statute. Congress let that law lapse at the end of the Clinton administration, but Morrison is still binding precedent … so Congress does have the constitutional authority to protect special counsels from executive interference.
Most Republican leaders say that firing Mueller would be “over the line.” But by parroting the White House’s and pro-Trump pundits’ arguments of the Scalia dissent-as-law, those same GOP leaders send a clear signal to the president: “We’ll find some excuse to do nothing if you fire Mueller.”
And I suspect they intend to do exactly that.
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