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The Supreme Court Already Said Trump Can Fire Mueller

A Republican President is under fire from his own party. Capitol Hill Republican leaders have threatened to impeach him if he fires high-level appointees who are undermining him, and they pass legislation to bar him from doing so. A constitutional crisis ensues when the President vetoes the bill, the veto is overridden, but the President proceeds to attempt to fire one of the protected appointees claiming Congress has no authority to force him to keep executive branch employees he doesn’t want.

Equal Justice Under LawPresident Trump in 2018?

No, President Andrew Johnson in 1867.

If they don’t want to actually study history, Members of Congress and their staff should just do a quick check of Wikipedia to educate themselves on the history and Supreme Court precedents regarding Congressional attempts to limit the President’s authority to dismiss employees of the executive branch, such as Special Counsel Robert Mueller.

In the aftermath of the Civil War the Republican Party was divided over how to conduct the Reconstruction of the states that had attempted to secede from the Union.  President Johnson favored a policy of quickly readmitting the secessionist states, while the majority in Congress favored a policy of setting up military districts to protect the former slaves, govern the secessionist states and gradually readmit them after pro-Union civil government was reestablished.

This disagreement prompted Johnson to consider firing Secretary of War Edwin Stanton, a leader of the so-called Radical Republicans and a strong proponent of the continued military government of the secessionist states.

To protect Stanton and others, many of them holdover Lincoln appointees, Congress passed the Tenure of Office Act, which restricted the power of the President to suspend or fire a Senate-confirmed official while the Senate was not in session. 

In August 1867, with the Senate out of session, Johnson made his move against Stanton, suspending him pending the next session of the Senate. However, when the Senate convened on January 4, 1868, it refused to ratify the removal by a vote of 35–16.

Notwithstanding the vote, President Johnson attempted to appoint a new Secretary of War because he wanted, by such action, to create a case through which to challenge the legitimacy of the Act before the Supreme Court. Proceedings began within days to move toward impeaching Johnson, the first impeachment of a United States President. After a three-month trial, Johnson avoided removal from office by the Senate by a single vote. Stanton resigned in May 1868.

Even though President Ulysses S. Grant urged its repeal, the Tenure in Office Act, with amendments and successor legislation remained in effect and caused another constitutional crisis when newly elected Democratic President Grover Cleveland suspended several hundred office holders for cause, the “cause” being that they were Republicans.

Senate committees requested information from cabinet members regarding the reasons for the suspensions, which Cleveland refused to provide. When, in early 1886, the Senate as a whole demanded information regarding the conduct of the suspended U.S. Attorney for southern Alabama, Cleveland sent a message to Congress explaining his position opposing congressional impingement on the independence of the executive.

Cleveland's replacement nominee was eventually confirmed when it was discovered that the suspended incumbent's term had expired while the controversy percolated. The Tenure of Office Act was finally repealed in 1887, but other legislation purporting to give Congress veto over presidential personnel decisions was still in effect.

Finally, in 1926, a law similar to the Tenure in Office Act (though not dealing with Cabinet secretaries) was ruled unconstitutional by the United States Supreme Court in the case of Myers v. United States, which affirmed the ability of the President to remove a Postmaster without Congressional approval.

Myers v. United States, 272 U.S. 52 (1926), was a United States Supreme Court decision ruling that the President has the exclusive power to remove executive branch officials and does not need the approval of the Senate or any other legislative body.

In 1920, Frank S. Myers, a First-Class Postmaster in Portland, Oregon, and a Republican, was removed from office by President Woodrow Wilson. An 1876 federal law provided that "Postmasters of the first, second, and third classes shall be appointed and may be removed by the President with the advice and consent of the Senate." Myers argued that his dismissal violated this law, and he was entitled to back pay for the unfilled portion of his four-year term.

Chief Justice William Howard Taft, writing for the Court, noted that the Constitution does mention the appointment of officials, but is silent on their dismissal. An examination of the notes of the Constitutional Convention, however, showed that this silence was intentional: the Convention did discuss the dismissal of executive-branch staff, and believed it was implicit in the Constitution that the President did hold the exclusive power to remove his staff, whose existence was an extension of the President's own authority.

For a brief of the case click here.

The Court therefore found that the statute was unconstitutional, for it violated the separation of powers between the executive and legislative branches.

In reaching this decision, the Supreme Court also expressly found the Tenure of Office Act, which had imposed a similar requirement on other Presidential appointees and played a key role in the impeachment of President Andrew Johnson, to have been invalid.

Editor’s note: The Court thought the matter to be so important that it included this dictum in its decision even though the Tenure of Office Act had been repealed by Congress some years before the Myers decision.

In reaching that decision, the Supreme Court stated in its majority opinion, "that the Tenure of Office Act of 1867, insofar as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid.”

The Court further found that restrictions on Presidential authority contained in the Constitution (including Senate approval for appointments) are merely limitations on a broad, general grant of power and are to be strictly construed.

The power to remove an official is incident to the power to appoint, inherent in the nature of executive authority and consistent with the President’s duty to see that the laws be faithfully executed, said the Court.

That same rationale, said the Court, does not apply to the Senate authority to consent to appointments, as their role is fulfilled upon when that body acts on the President’s choice for an appointment.

Similarly, and most importantly, the authority of Congress to give the President power to appoint certain officials does not suggest additional authority over appointees. The historical record suggests that from the First Congress on, the power to remove was with the President, said the Court.

Clearly, the reasoning in Myers v. United States, decided by the Supreme Court in 1926, applies to the President’s ability to fire Special Counsel Robert Mueller if he so chooses. Whether that would be wise politically is another question, but congressional attempts to “protect” Mueller from the President’s clear constitutional authority are intentional efforts to precipitate a constitutional crisis for the benefit of those who think impeaching President Trump will benefit them politically.

George Rasley is editor of Richard Viguerie's ConservativeHQ.com and is a veteran of over 300 political campaigns. A member of American MENSA, he served on the staff of Vice President Dan Quayle, as Director of Policy and Communication for Congressman Adam Putnam (FL-12) then Vice Chairman of the Oversight and Government Reform Committee's Subcommittee on National Security and Foreign Affairs, and as spokesman for Rep. Mac Thornberry now-Chairman of the House Armed Services Committee.

 

Sources:

Myers v. United States, https://supreme.justia.com/cases/federal/us/272/52/case.html

Meyers v. United States Case Brief, http://www.4lawschool.com/case-briefs/meyers-v-united-states

Myers v. United States Case Brief, https://bit.ly/2H5UGFH

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Firing Mueller which Trump doesn't have in mind

The President has the power to fire anyone. I know it doesn't matter what the court said, Mueller was hired illegally. Rosenstein did not have the authority to hire him, only Sessions did. So he's been scamming the US for is it 18 months? A little more, there is no crime to start impeachment proceedings on. However, do it anyway and witness a bloodier revolution since 1776. Prepared? Believe me, the 1.8 million military, 1.6 million hunters and about 1 million give or take patriots are. Remember the military oath never expires.

doesn't really matter what the court said>>>>

If Trump were to fire the head case, the Congress would jump at the chance to initiate impeachment proceedings.......something the court can't stop.

SESSION, ROSENSTEIN AND MULLER

I would rather see Sessions develop a paper chronicling the activities of rod rosenstein's actions since President Trump has been under scrutiny.
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First, rosenstein was involved with the FISA request.
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Second, he developed the paper to justify comey being fired.
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Third, he recommended that Muller be nominated to take comey's place as FBI director.
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Fourth, after President said thanks but no thanks to that suggestion rosenstein appoints mueller to the special council and gives him broad powers to investigate just about whatever mueller wants to investigate even if it has nothing to do with the original issue of the supposed collusion between Trump and Russia.
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Sessions should fire rosenstein and appoint an honest broker to replace him, that is if there are any honest brokers left in Washington. Then Sessions should inform the new assistant director to reign in mueller and his investigation to cover only the specific question of whether there is any proof of collusion between Trump and Russia and if there is not wrap it up and go home.