It wasn’t long ago that our junior senator was lecturing Laura Ingraham about needing a refresher on American government, civics, and that kind of thing. Now, it appears Wall Street Journal columnist William McGurn — also a veteran of the Buckley-era National Review and The American Spectator — thinks Thom Tillis needs one TOO:
The Republican Congress must be taking lessons from Roger Goodell.
At the same time the NFL commissioner has let millionaire athletes make the league look ridiculous and the national anthem divisive, the GOP is letting an unelected special prosecutor make an end run around its congressional powers and prerogatives. It won’t get any better, either, until Congress resurrects its own playbook—and jails those who defy its subpoenas.
Alas, à la Mr. Goodell, some Republicans are egging on the very people undermining their own authority. A perfect example comes Tuesday at 10 a.m. in the Dirksen Senate Office Building, where the Judiciary Committee will consider two bad Republican bills that punt on one of Congress’s most vital responsibilities.
The first, sponsored by Sen. Thom Tillis (R., N.C.), is called the Special Prosecutor Integrity Act. The second, by Sen. Lindsey Graham (R., S.C.), is the Special Counsel Independence Protection Act. Each would make it impossible for President Trump to sack Robert Mueller without some review by a panel of judges.
Only one problem: It’s unconstitutional. Almost 30 years ago, in a stinging and solitary dissent about the illegitimacy of the independent counsel law, Justice Antonin Scalia noted the Constitution vests all executive authority in the president. Though Mr. Mueller’s special prosecutor is a much-watered-down version of the old independent counsel, the principle holds.
Scalia understood the argument that a criminal president couldn’t be trusted to investigate and prosecute himself or his staff. His remedy was for the other two branches of government, separate and coequal, to assert their own unique powers. Impeachment is one such power.
Another is inherent contempt, under which Congress may jail those who refuse to provide the information it needs. The Supreme Court in 1821 recognized that without the ability to hold in contempt and imprison those who refused its demands, Congress would be “exposed to every indignity and interruption, that rudeness, caprice or even conspiracy may mediate against it.”
That’s a fair description of where we are today, especially the notion that Congress should do nothing to jeopardize Mr. Mueller’s work. This gets it backward: Our democracy is rooted in the idea that it’s more important for the American people’s elected representatives to get the information they need than for wrongdoers to be held criminally liable. Which is why Congress can compel information from witnesses who refuse to testify, but what they say cannot be used to prosecute them.