A professor at the University of Virginia School of Law told the Senate Judiciary Committee today that it could be inviting litigation with the method senators are considering to extend the term of FBI Director Robert Mueller III.
The professor, John Harrison, warned lawmakers that the pending legislation raises questions about whether Congress is overstepping its constitutional authority. The legislation would change Mueller’s term limit from 10 years to 12 years. The problem, Harrison said, is that the director’s post would otherwise be vacant in September, so the legislation is equivalent to Congress filling a vacant position.
“That is an appointment, and it is something that Congress cannot do,” said Harrison, a former deputy assistant attorney general in the Justice Department’s Office of Legal Counsel. He said the constitutional doubt could cause someone who’s the subject of Mueller’s authority to challenge the extended term in court.
That view was not unanimous at a hearing where the Judiciary Committee gathered input on the proposed extension. William Van Alstyne, a professor at William & Mary Law School, noted that President Barack Obama called in May for Mueller’s term to be extended, a request that Van Alstyne said is “effectively a nomination.”
But Harrison’s testimony gave pause to at least one senator who otherwise said he supports keeping Mueller in place. “I do have concerns that we could be mired in court battles… that could make you ineffective in your job,” said Sen. Tom Coburn (R-Okla.).
Mueller, in response to Coburn, warned that he’s not a specialist in constitutional law, but he said he had heard nothing so far in his discussions that concerned him. “If that were a substantial problem then, quite obviously, I would be concerned,” Mueller said.
Congress could sweep away the constitutional doubt, Harrison said, by taking a two-step approach to extending Mueller’s term: first passing a law creating the possibility of a two-year term as FBI director, and then confirming a nomination of Mueller by Obama for that term. However, that is not the path chosen so far by Sen. Patrick Leahy (D-Vt.), the Judiciary Committee chairman, and Sen. Charles Grassley (R-Iowa), its top Republican.
Another witness today, former deputy attorney general James Comey, weighed in supporting a two-step procedure. “If you could do it in a way that would be bulletproof… that would be better,” said Comey, who’s now with the hedge fund Bridgewater Associates.
Harrison disagreed with Van Alstyne that Obama has effectively nominated Mueller for an extension. “A request for legislation by the president is not a nomination,” he said. “Formalities in the process of legislation, or here in nomination and appointment, have to be complied with.”
Van Alstyne said he has doubts that Congress has the constitutional authority to limit the term of an executive-branch official like Mueller. Once the Senate confirms such an official, he said, the official serves at the pleasure of the president. “I don’t believe Congress may limit the service” of an official with a purely executive function, he said.