The Bill to Protect Mueller May Not Survive the Supreme Court


Bruce Green was quoted in The Atlantic where he discusses whether or not the president has the constitutional power to prosecute.

Constitutional interpretation is not simply a matter of which side has the more persuasive argument or the nobler intentions. Realistically, the bill’s constitutionality, and thus its survival, comes down to votes—and not just those in Congress. Akhil Reed Amar, a constitutional scholar at Yale University, is among those who say Congress can’t limit the president’s firing power, because the Constitution vests all executive authority in the president. Mueller and other federal prosecutors are “inferior officers” under the Constitution, and therefore can be dismissed by a “superior” officer.

Other experts point out that the Constitution does not explicitly give the president power to determine who gets prosecuted. “Presidents can set criminal-justice policy, but—except perhaps in cases with foreign-policy implications—the president does not have constitutional authority to direct a federal prosecutor to initiate or dismiss criminal charges, or to direct how to conduct a particular grand-jury investigation or criminal prosecution,” said Bruce Green, a law professor at Fordham University and a legal-ethics expert who recently co-authored a paper on prosecutorial independence. “Prosecutorial independence is a cherished value in our democracy. Prosecutors are supposed to make decisions based on criminal-justice principles, not partisan politics.”

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