Congress obligation to ensure that in selfdealing is limited as much as possible. I should add, by the way, there was another special prosecutor who was appointed in i think 1951 during the truman administration. A man named morris. He was appointed to investigate corruption in the i. R. S. And Justice Department. He was expired by mcgraph, the attorney general, at trumans request and the investigation was never completed as a result. So thats the thing we have to worry about. Thats what warranted the independent counsel statute. If it produced unnecessary investigations thats not the problem here because the attorney general retains the power to make the appointment in the first place. Senator leahy let me ask you another way. The president , the white house could undercut or think they could undercut. They cut back the budget of the special counsel and you talked about the oped that was in the new york times. You could attempt to undermine the special investigations budget. Im vice chairman of the Appropriations Committee and we have Congress Appropriation powers. Can congress assert a role in ensuring the president or attorney general or acting attorney general cannot undercut or eliminate the funding for the special counsel . You do have the power. You do have the power. Under existing regulations, the attorney general determines the budget of the special counsel and could request zero dollars for the special counsel if thats what he wants. Congress could step in and appropriate congress. Thats within congress power. The president would be require to spend it. Senator leahy incidentally, we talk about protecting special counsel and separation of powers doctrine. I know theres been some disagreement here and i appreciate that. Suppose we pass no law. The current regulation is protecting special counsel omehow didnt exist. Obstruction of justice is lways a crime, am i correct . , is it a basic protection for the special if the president required him to improperly influence the russia investigation, doesnt that raise a question of obstruction of justice . I think it does, senator leahy. I think it goes far to protecting the special counsel. I think its possible that the existing legislation would be sufficient for the special counsel if he were removed without good cause. So the real question here i think is not akin to the counsel statute where congress has created this entire structure. The Justice Department has voluntarily created this instruct umplete we need to make sure its not abused to high crimes from those in the administration. Senator leahy you said no one can be a judges own case. What does that say about a president s ability to pardon himself . He has no such power. Im long on the record as discussing that but since you mentioned the pardon, and it connects to senator lees question. He says well i am pardoning this person and that person. They happen to be in my administration. They happen to be my former Campaign Head or friends or relatives and then doing it so the country can mover on. Mr. Amar we are spending too much money. This is distracting from other thing. Accountability in the end, there is a pardon power. Accountability in the end has to be impeachment and press jorchejover sight and senate oversight. I dont think judges can undo that and judges cant quite decide whether thats good cause or not. The pardon power means at the end of the day the president an choose not to prosecute pot smokers in colorado or other folks. Senator leahy getting off the question. Mr. Amar you cant pardon himself. Senator leahy i want to make sure we have the answer. Id ask my other questions to my statement in the record. Senator grassley the record will stay open for a week. The statement will be in the record. Now, i have republicans down this way. Graham, cornyn, tillis and kennedy. So ifs three aany disagreement with that let me know. Senator graham. Senator graham thank you, mr. Chairman. Thank you for having the hearing. So lets remind ourselves why were here. Do all of you agree that attorney general sessions did the right decision to recuse himself from the russia investigation because he was part of the campaign . I have no id have to look through the facts of that. I just read press reports which i am not sure are accurate. So far as i understand the facts, yes. Yes. So far as i understand the facts, it is sensible. Senator graham i think the attorney general made the right call because its going to be pretty difficult to have the attorney general investigate the campaign which he was involved so thats the start of all this process. So once the attorney general steps aside, you got the Deputy Attorney general. We all agree he could take his place if hes not conflicted, do we agree . Yes, gentlemen. Senator graham we had some actions by the president that unnembd the Deputy Attorney general and appointed counsel, do we all agree with that yes. Yes. Senator graham we got here because sessions said i cant do. Rosenstein says i will do this. And some things happened between president and comey where president said, well, we need some new person, a special counsel to look at this. Thats how we got here. All agree with that . Yes. Yes. Senator graham what were doing is try to move forward and hold mr. Mueller accountable and give him protection to do his job. Do we agree that the president himself cannot fire mr. Mueller . Mr. Amar actually, if you read even the oned by our mutual friend, neil, in the Washington Post who helped write the regulations he says thats not altogether clear. Its not clear that the regulations themselves actually apply to the president as opposed to merely figures in the department of justice. Senator graham do you think he has the Inherent Authority to fire this guy . Mr. Mar we dont agree. Senator graham what do you think, mr. Posner. Mr. Posner i do agree that scholars and others would be un mr. Vladeck the Supreme Court has held multiple times that the executive branch and toto is bound by regulations that in itself promulgated until it probably rescinds them. I agree the Supreme Court said the senator graham in english, you dont think you can . Mr. Vladeck i try to avoid english. Senator graham mr. Duffy. Mr. Duffy he does have the de facto power because he could fire the representatives at the department of justice to repeal the regulations. Senator graham it would be a twostep process. Mr. Duffy a twostep process. Mr. Vladeck or find someone that will fire the acting attorney general. Senator graham were trying to make sure that something out of bounds can happen and mr. Mueller can proceed forward with some confidence. Is that a thing worth the Congress Looking at given the circumstances we have . Do you think were doing the right thing by looking at that . I think you are. Providing a process and orderly process of judicial review might strengthen president ial power and make the president more certain that if there is something that is, you know, legitimately good cause the president believes is good cause, the president can issue an order and not have brinksmanship. Not have saturday night massacre. Senator graham what i am trying to avoid is a saturday night massacre and upheaval in the country that i think would be hard for us to goferte. I want the president to know there is a process in place. There are checks and balances. Long before you got here. And long before after youre gone. Nder our approach, basically before the special counsel is terminated we ask a Judicial Panel to evaluate the reason given by either the president or the acting attorney general. The other solution is after hes terminate to reinstate. Mr. Vladeck, you say our approach is better because it allows the investigation to move forward. Less upheaval. Do you still stand by that . Mr. Vladeck i do. I propose the tweak to have the special counsel initiate the senator graham i think thats a good position. Mr. Posner, you said probably are constitutional. Do you agree that keeping the special counsel in the game in terms of an investigation provides the most continuity . Mr. Posner yeah. I agree. I support the grahambooker bill. Senator graham to the public, i am a republican. I want to make sure mr. Mueller does his job if he gets off script and does something wrong there will be a way to look at whats doing. Hes not above the law either. I just want everybody in america to know hes going to his job without fear of reprisal. He will do his job. This is not about president trump. This is about any president at any time in the future being able to be held accountable as an individual and theres nothing more important to me than to say without hesitation that everybody in america, including the president , can go is under scrutiny when there is an allegation they may have done something wrong. And thats what this is all about. Senator grassley senator whitehouse. Senator whitehouse thank you very much, mr. Chairman. Professor, amar, welcome. You said the power to pardon is the lesser power to decline prosecution for any number of reasons. Can this lesser power you describe be regularized by the president into policy so that the folks who are actually enforcing the laws have a spiff direction from the president as to that power that lesser power to decline prosecution . Mr. Amar yes. Its typically subject to revision. For example, president obama could basically say were not going to pardon people who violate arguably federal laws in colorado on possession of senator whitehouse its not unconstitutional for a president to say were not going to prosecute, for instance, the daca kids . Mr. Amar daca is tricky because its civil, nonenforcement. Criminal excuse me. Senator whitehouse the power to choose to enforce is executive in either case . Mr. Amar with criminal it interacts with the pardon power in a way that it doesnt on the civil side. Otherwise, you can have, for example private prosecution on the civil side, antitrust laws, and the like, and you cant have thoon the criminal side. So theres more power of nonprosecution on the criminal side. Senator whitehouse so first of all, professor posner, are you the son of judge posner . Mr. Posner yes. Senator whitehouse he had an extraordinarily distinguished career and one of the historic judges. So mr. Posner thank you. Senator whitehouse i have three questions i am not going to ask you all to answer right now. As the chairman has said, you have the ability to reflect on these things and then answer as questions for the record but id like to you reflect on three things. The first is its been said in this hearing that the president cant order an official to do something illegal. Does that mean that it is unlawful for the president to order an official to do something illegal . And if it is unlawful to order an official to do something illegal, is there a remedy, a legal remedy for that . And obviously the context here would be that the firing of the special prosecutor would in fact be an act of obstruction of justice. So thats the question one. Question two, there is a ertain amount of debate over the role of grand juries that i dont think anybodys testimony here has touched on the role of grand juries. But there is at least an open question whether the grand jury is the instrument of the prosecutor or whether the prosecutor is the instrument of the grand jury. As i understand it, once a grand jury is sitting, the grand jury has the ability to tell a prosecutor to go pound sand and they are not going to give them accept s ps. They have the ability to demand subpoenas and witnesses even if the prosecutor doesnt want to produce those subpoenas and witnesses. The u. S. Attorneys manual describes the grand jury as an independent body of government. So how does the prosecutor, in his role, potentially as the servant of a grand jury, engage in this whole separation of powers question . Its a little bit of an interesting wrinkle. I think we should not overlook. Were doing a great job in this country of overlooking the constitutional role of juries and grand juries. Our Founding Fathers i think would be stunned and horrified and i think that puts an extra at least a wrinkle into this analysis. Once you have a prosecutor who is now the servant or the instrument of a grand jury, does that affect in any way does that effect in any way the purity of an executive authority to terminate . The third is the 25th amendment, section 4, which says that the Vice President and a majority of the principal officers of the executive departments can actually remove all executive powers from the president. They can at least temporarily displace him from office. A f the Vice President and majority of the principal officers of the executive department have the power to remove all powers from the resident, would it not be at least logical to presume that a similar body consisting of the Vice President and a majority of the principal officers of the executive department have to sign off on the firing of special counsel . Would it be closer to the constitutional scheme if you avoided the judiciary entirely and establish that that same panel that is already in place under the 25th amendment had a voice in this decision . And that the lesser power is to say to the president , hold off there, you cant fire this guy while hes investigating you is within the greater power of removing all powers from the chief executive . Those are complicated questions and i look forward to your responses and due course and i appreciate the expertise of this panel and i thank the chairman. Senator grassley senator tillis. Senator tillis thank you, mr. Chair. Thank you, gentlemen, for being here. I think in some of the opening comments, since im one of the sponsors of the bill in question here today, that i talk about my motivations. Professor amar, you and i have probably could have a beer together but i doubt wed see eye to eye on many ideological issues. But i do have to i have to go back and explain what my motivation for this bill was. I think that the at the time back in august we had a we had a lot of things that were going before this committee over the past year or so. We had weve had a significant degradeation i believe in the reputation of our f. B. I. And our department of justice over the past eight or nine years where there were a lot of people called into question, whats going on and what i consider to be the greatest Law Enforcement entity thats ever existed. But it was degrading in the public consciousness. So my motivation for this bill and mr. Duffy, you said something that i think is importantpoint because we have the retroactive date. We decided it would have to come out if this bill moves forward and simply say its applicable to anybody in the role after this bill is enacted. But my motivation was actually to remove the distraction and to eliminate what i thought was a spiraling of the narrative out there that was not based in any factual anything in the record, i should say, this president intended to remove the special counsel. It became something that just spun up through social media. Everything else. I dont know of any actions the president took that people could say that he was moving to remove the special counsel. My goal is to get something out there to discuss that maybe there is an opportunity for us to assert some level of a check and balance in place. And its very difficult to do that when youre in the majority. Generally speaking, people advocate for these bills when they are in position of majority. And particularly when your president is of the same party. And i thought it was important for the purposes of other matters that we should bring before this congress for somebody to step out and do it when its difficult, not just when its easy. But professor amar, when you may have made public statements against this president s election, i was campaigning for him. I generally support his policies. I think this president will do well as the commander in chief. But there is a role that we have to play to just kind of lower the temperature and let the processes play out. That was my primary motivation for filing this bill. And id like to believe there are members on the other side of the aisle if they were in my position, if this were president clinton, and there would have been most likely investigation going on because of the meddling of the russians in the election. I dont think anybody disputes that. That they would have had the courage and conviction in our role in this process to put forth that bill and would stay side public outcry from of the aisle for not supporting the president. I support this president completely. Now, i also think we are not here to clip any one president s wings but to create a sense of a check on any future president. Now, i want to go to you, mr. Duffy. I do believe that the retroactive provision is something that makes sense to take out and it would make that more consistent i think with senator grahams and senator bookers bill. Another thing that we talked about because in our originally proposed bill was more or less codifying the rules that existed in the d. O. J. Im wondering whether or not it will also make sense to move to a point where were saying you simply have to follow whatever rules are in place at the time the action took place. In other words, not codifying for prosperity the rules that exist today but as things change, how do you think that either makes our proposal better or worse . Mr. Duffy well, theres two alternatives to that. One, you could say they have to be they have to follow their own rules that are in place at the time of firing. I agree with professor vladeck, but thats already the law because the Supreme Court said agencies must follow the rules but that would be kind of weak because you could repeal the rules. So i think what you would say it has to follow the rules that existed at the time of appointment. That, again, has a certain retroactive effect which i discussed in my written statement and i think is constitutionally troubling. I will say the procedures actually get fast judicial review which are sort of shared by the two bills. Slightly different ones. I think are a good idea and would bring some degree of certainty to the process and the retroactivity provision you make that separately severable. There were claims like the ones adjudicated after the firing of arch balanced cox. They should be archibald cox. Senator tillis thank you. My time is up. We are going to submit. Thank you for your statements. We will submit questions for the record and i appreciate you weighing in on this. Thank you, mr. Chairman. Senator grassley senator klobuchar. Senator klobuchar thank you. Thank you, all of you