The Deep Congress
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
Today’s approval by the Senate Judiciary Committee of a bill to gut the president’s power to fire a special counsel represents a shocking breach of the principle of separated powers. It’s an attack by a cowardly congress on an executive branch whose coequality, enshrined as it is in our national parchment, the members of the Congress are sworn to support.
The measure’s approval in the Judiciary Committee is no less shocking for the fact that it is unlikely to be passed into law. The Hill newspaper reckons it lacks the votes for cloture in the Senate and, in any event, it is opposed by the majority leader, Senator McConnell. It stands less chance of passing the House. It would, in any event, be vetoed by any self-respecting president.
Even so, it provides a glimpse of what might be called the Deep Congress. This is the legislative analog to the Deep State, which is, the institutions or individuals within the the executive branch that have been trying to sink the administration with a campaign of leaks. That campaign involves breaking laws, but it is not in and of itself unconstitutional. It’s an autophagy of the executive.
What Congress is doing is worse. All the members of the Congress, like all officers of the government, are sworn to a Constitution that grants to the president the power — and imposes the duty — to commission “all” the officers of the United States. To be able to faithfully execute the laws, any president has to be able to fire his officers, even a Special Counsel.
It is cowardly for Congress to shrink from a proper impeachment, if that is what it wants, and instead to delegate to the executive branch the task of telling Congress whether the President ought to be impeached. Article 1, Section 2, after all, grants to the House the “sole” power of impeachment. That it should farm out to the branch whose leader it could impeach the process of investigation is illogical.
The bill, sponsored by Three Democrats and a Republican, would, as the Hill puts it, “codify Department of Justice regulations” that say only a senior Department of Justice official could fire Robert Mueller or another special counsel. It would also allow a court — another breach of separated powers — to review the firing and, if it wants, reinstate the special prosecutor.
What sort of lickspittle legislator is Lindsey Graham, who helped hatch this idea? The sort, it seems clear, who, along with that the backers of this bill, is not of presidential timber. No presidential prospect would agitate for preventing a president from firing any one of his officers, never mind as royal a pain as a special counsel.
Which is why we call it the Deep Congress. The danger here is not to President Trump (the Congress could oust him in a twinkling, if it wanted). It’s to the executive branch itself. We’ve long since said we favor relieving the special prosecutor and delivering whatever fruits there are from his investigation to the House Judiciary Committee. It would horrify the Congress, of course, to be put on the spot.