New developments in Supreme Court case related to Robert Mueller and Donald Trump

| 10:55 pm EDT April 23, 2018
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On April 23, 2018, the Supreme Court of the United States heard oral arguments in a case, Lucia v. Securities and Exchange Commission (transcript can be found here) that may result in a decision about the President’s power to fire various officers, including Special Counsel Robert Mueller.

Lucia involves the hiring of administrative judges at the SEC, a minor case in the scheme of things. President Trump’s Solicitor General, Noel Francisco, intervened in the case, seeking an expansive declaration by the Supreme Court regarding the president’s power to fire all “officers of the United States” who “exercise significant authority.” The Supreme Court declined to include the removal question in its grant of certiorari, but Francisco Francisco (who would oversee the Mueller probe if Rosenstein were fired) briefed the issue anyway- and asked the Supreme Court to give him time to argue because “only the government has addressed in its brief the merits of the removal question.”

On April 23, Jeffrey B. Wall, Deputy Solicitor General, on behalf of the SEC, in support of Lucia, argued: “And we obviously have urged the Court to address the removal issue….” Wall was challenged by various Justices in his arguments about the power of the executive branch to remove. Wall argued the review should address those federal employees who had the power to bind on important matters and have significant discretion.

The term “Special Counsel” was never used, although there was discussion about the authority of a deputy attorney general. At one point, Wall used an example where the Attorney General by regulation delegates “all criminal prosecutions to the deputy attorney general, I think it would be difficult to say the DAG is not an officer….”. He concluded this line of thought by arguing anyone who has the power of “adjudication of a dispute in which you impose liability on a private individual, that renders you an officer of the United States.”

While the Lucia case is very technical and appears to be addressing the narrow question of SEC Administrative Law Judges’ authority, the bottom line is this – the intervention of the Solicitor General is an effort by the Trump administration to gain support for potential removal of Mueller, who has the authority Wall noted for the DAG. We will see in late June if SCOTUS bites on the bait.