The US Constitution is an amazing document. It sets forth and recognizes a whole host of rights that governments today fail to recognize, and was a valiant attempt at limiting the power of a government that otherwise might have quickly descended into the same tyranny which the colonists had just overthrown. But while it was a good attempt at limiting the size and scope of government, it has ultimately failed. Government has grown larger, more powerful, and less accountable than ever before. And nothing has brought that into view more than the actions of the Special Counsel investigating President Trump.
There is a great amount of debate right now about whether or not President Trump has the power to fire the Special Counsel. Without getting into the actual language authorizing the Special Counsel yet, the Constitution makes it clear in Article 2, Section 2 that both Congress and the President have appointment power:
“He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Does the power to appoint also imply the power to dismiss? Can a person in a position established in law as being appointed by the head of a department only be dismissed by the head of that department? That’s debatable, as Article 2, Section 1 states that the “executive Power shall be vested in a President of the United States of America.”
If the head of an executive department could be the only person to dismiss someone he appointed, then the President doesn’t possess ultimate executive power. Congress could establish all the power of appointing positions below department heads in the department heads themselves and the President would be powerless to dismiss them, making him essentially a figurehead or a puppet of Congress. Is that what the Founders intended? The Founders definitely intended Congress to be the primary and most powerful branch of government, but they didn’t intend its power to be dictatorial or to run roughshod over the other branches of government. That’s what the separation of powers is all about.
What makes the Special Counsel unique is that it is not established by law, it is established instead by regulation of the Department of Justice, codified in Part 600 of Title 28 of the Code of Federal Regulations. 28 CFR 600.7 (d) states:
“The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.”
Since the authority to remove the Special Counsel comes from the Attorney General’s own regulation, claiming that the President doesn’t have the authority to remove the Special Counsel would mean that the Attorney General has the power to create positions that he could fill and that the President could not fill, abolish, or otherwise influence. That would be nonsensical and illogical, as it would grant the Attorney General executive power above that of the President, power that he could wield unchecked, and power that is nowhere authorized in the Constitution.
Some may argue that the President could then engage in any corrupt activity he wanted to with impunity. That’s not true. Neither the Attorney General nor the Special Counsel are supposed to be a means of investigating the President. That’s Congress’ responsibility. Impeachment is in the Constitution precisely to protect against a corrupt President. It’s just that Congress hasn’t taken its responsibility to impeach seriously over the centuries and has allowed any number of tyrannical Presidents to remain in office. Thus the impeachment power is seen now as a last resort rather than as the preferred method of removing from office a President who is unfit for office.
Instead Congress is allowing the Special Counsel to run amok, allowing him to set himself up above the President and above the Attorney General, as an unaccountable investigator with unlimited power and a mandate to find whatever he can to prosecute the President. This kind of political witch hunt is a dangerous precedent to set.