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S. 1735 (115th): Special Counsel Independence Protection Act

Could President Trump fire the man leading the investigation into his campaign’s ties to — and possible collusion with — Russia?

Two new Republican bills, the Special Counsel Independence Protection Actand the Special Counsel Integrity Act, would make such a firing much more difficult, if not impossible.


Trump and his legal advisers are said to be considering firing Robert Mueller, who’s leading the special counsel investigation, according to a recent Washington Post report.

While Trump certainly expressed no qualms in May about firing FBI Director James Comey, who was previously leading the FBI’s Russia investigation, the FBI director serves at the pleasure of the president. Indeed, Bill Clinton fired FBI Director William Sessions in 1993. (Although not because of an investigation into Clinton.) But a special counsel is supposed to be beyond presidential reach.

No president has ever tried to fire a special counsel before, and some senators want to prevent Trump from being the first.

What the bills do

The Special Counsel Independence Protection Act, introduced by Sen. Lindsey Graham (R-SC), would allow a special counsel to be fired only if a federal court first establishes that they had exhibited “misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause for removal.”

The Special Counsel Integrity Act, introduced the same day by Republican Sen. Thom Tillis (R-NC), would do essentially the same thing, but allow the judicial review to take place retroactively too. So if Trump fired Mueller, a three-judge panel could reinstate the special counsel within 14 days.

Few if any people, even within the Trump Administration, are really claiming that Mueller has yet met any of those disqualifying criteria such as “misconduct” or “incapacity.” So by bringing the ostensibly-nonpartisan judicial branch into the decision-making process for firing a special counsel, instead of just the more political executive branch, the hope is to make it almost impossible for a special counsel to be fired.

What supporters say

Republican Sen. Lindsey Graham’s (R-SC) bill is notable for its three Democratic cosponsors, while Senator Tillis’ bill has 1 cosponsor, a Democrat. Supporters argue the legislation would protect the politicization or coercion of what is supposed to be an independent and nonpartisan investigation to find the truth.

“Checks and balances have served the country well for the past two hundred years,” Sen. Graham said in a press release. “We should all be interested in making sure that special counsels have oversight. Special counsels must act within boundaries, but they must also be protected. Our bill allows judicial review of any decision to terminate a special counsel to make sure it’s done for the reasons cited in the regulation rather than political motivation. I think this will serve the country well.”

What opponents say

Trump opposes the Russia investigation in general, calling the entire thing “the single greatest witch hunt in American history.”

He claims the investigation is a charade promoted largely by Democrats in order to pin blame on a foreign power instead of on themselves for losing the last election. Trump called the investigation “biased” and noted that three of the members of the special counsel team have donated to Democratic candidates. (Although Mueller himself has never personally done so.)

Trump reportedly also expressed to aides his anger regarding Mueller’s potential ability to subpoena his tax returns, which he’d refused to publicly release during the 2016 campaign in violation of a decades-long common practice for presidential nominees.

Odds of passage

The ‘Protection Act’ has attracted three Senate cosponsors so far, all Democrats: Sens. Richard Blumenthal (D-CT), Cory Booker (D-NJ), and Sheldon Whitehouse (D-RI). The ‘Integrity Act’ has attracted one cosponsor so far, a Democrat: Sen. Chris Coons (D-DE). Both await possible votes in the Senate Judiciary Committee.

Last updated Aug 10, 2017. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Aug 3, 2017.

Special Counsel Independence Protection Act

This bill sets forth requirements and limitations with respect to the removal from office of a special counsel appointed by the Attorney General, or of another official appointed by the Attorney General who exercises a similar degree of independence from the Department of Justice (DOJ) chain of command.

Specifically, a special counsel or other appointed individual may be removed only if: (1) the Attorney General files an action in the U.S. District Court for the District of Columbia and files a contemporaneous notice of the action with Congress; and (2) the U.S. District Court for the District of Columbia issues an order finding misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of DOJ policies.