Robert Mueller, Donald Trump and the Supreme Court

On April 23, 2018, the Supreme Court of the United States is scheduled to hear oral arguments in a case, Lucia v. Securities and Exchange Commission that may result in a decision about the Presidentโs power to fire various officers, including special counsel Robert Mueller.
Lucia involves the hiring of administrative judges at the SEC, a minor case in the scheme of things. However, Donald Trumpโs Solicitor General, Noel Francisco, intervened in the case, seeking clarification regarding the presidentโs power to fire all โofficers of the United Statesโ who โexercise significant authority.โ The reality is Francisco (who would oversee the Mueller probe if Rosenstein were fired) is asking the Supreme Court to address this โremovalโ issue.
The issue of the presidentโs power to remove officers is one that has been debated for many years, sorting out the balance of power between the president and Congress. Francisco is arguing the president has the sole authority to hire and fire anyone who exercises โsignificant authority.โ Francisco cites two Constitutional provisions- the Appointments Clause (โThe President shall nominateโฆall other Officers of the United Statesโ) and the Faithful Execution Clause (President shall โtake care that the laws be faithfully executedโ)- for the position that the president has broad termination powers.
The Roberts Court appears open to such arguments. In 2010, the Supreme Court struck a provision in the Sarbanes-Oxley Act permitting the firing of public accounting board members only for โgood causeโ by a vote of 5-4. Free Enterprise Fund v. Public Accounting Oversight Board. Roberts wrote, โSince 1789, the Constitution has been understood to empower the president to keep those officers accountable- by removing them from office, if necessary.โ
The United States Court of Appeals Court of Appeals for the D.C. Circuit split 5 to 5 on whether administrative judges were officers. Franciscoโs intervention in this hearing is intended to get SCOTUS to rule that the President has the power to remove Mueller, despite the Justice Departmentโs regulations that specify the special counsel may only be removed for โmisconduct, dereliction of duty, incapacity, conflict of interest or for other good cause.โ If SCOTUS goes beyond the narrow issue it has agreed to address, this could provide support for Trump to fire Mueller. The investigation may well hang in the balance if SCOTUS agrees the President has such powers.

Daniel is a lawyer writing and teaching about SCOTUS, and is the author of the book “The Chief Justices” about the SCOTUS as seen through the center seat.