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Justice Kagan Refuses to Even Consider Issue that Would Make it Easier to Fire Robert Mueller


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The Supreme Court handed down an opinion on Thursday in the case of Lucia v. SEC, which was about whether Administrative Law Judges who issue rulings for the Securities and Exchange Commission are “Officers of the United States,” or merely employees. The Court ruled that ALJs are indeed “Officers” covered by the Constitution’s Appointments Clause and not mere “employees,” but they declined to address a related question raised by Solicitor General Noel Francisco that could have had serious implications for Special Counsel Robert Mueller.

In a brief, Francisco asked the Court to address the standard for firing agency employees, which currently requires that it be “for cause.” Francisco wanted a determination on the constitutionality of imposing such a restriction, claiming that Congress shouldn’t be allowed to put limits like this on the president’s (or president’s appointee’s) ability to fire people. Francisco argued that at the very least, if the “for cause” standard must remain, “cause” should be broadly interpreted to mean pretty much any reason.”

This was a notable argument, because if President Donald Trump were to fire Deputy Attorney General Rod Rosenstein, Francisco would be next in line to take his place as Acting Attorney General in the Russia probe. Current regulations state that the Acting Attorney General is the one with the power to fire a Special Counsel. Rosenstein has said that he would only fire Mueller if there was good cause. Francisco’s argument seemed to indicate that his personal standard for “cause” would be significantly lower.

Justice Elena Kagan, however, was having none of this, addressing the question in a footnote. Kagan noted that the Government first asked the Supreme Court to take up this question a brief at the certiorari stage (when cases are first brought up for the Court to decide whether to hear them), and then tried again later, even after the Court said no.

“When we granted certiorari, we chose not to take that step,” Kagan wrote. “The Government’s merits brief now asks us again to address the removal issue. …We once more decline.”

As for Lucia’s case, the Court’s decision was in his favor, ruling that the proceeding in his case was invalid because the ALJ was not hired in accordance with eh Appointments Clause of the Constitution. Because Lucia raised a timely challenge to the ALJ’s ruling, the Court ordered that he get a new hearing before a new judge.

Note: This article has been updated with additional details of Lucia’s case.

[Image via Chip Somodevilla/Getty Images]

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