The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In light of the FBI's search of Michael Cohen's office, as well as reports that President Trump considered firing Robert Mueller in December and June, the Senate Judiciary Committee will vote next week on a bi-partisan bill that would allow Special Prosecutors to appeal their firing to a panel of judges. The President, Congress, and the Special Prosecutor, of course, are now asking this question: What Would William Howard Taft Do?
As it happens, Taft's presidency was nearly undone by his rash decision to fire Gifford Pinchot, a moralistic whistleblower and aide to Theodore Roosevelt who served as the head of the U.S. Forrest Service. Pinchot alleged that Taft's Secretary of the Interior, Richard A. Ballinger, had corruptly sold lands to a mining syndicate controlled by J.P. Morgan, a contributor to Taft's campaign, rather than preserving them for environmental conservation.
Convinced that Ballinger was innocent, Taft fired Pinchot because of his prickly demands for personal loyalty among his closest aides, and his tendency to become enraged when they criticized him. Taft then made matters worse by backdating the document he issued to justify the firing—a deception uncovered by the crusading investigator Louis Brandeis. As usual, in Washington, the cover up was worse than the crime. The firing led to the historic breach between Taft and Roosevelt, splitting the Republican party and guaranteeing Woodrow Wilson's election in 1912.
If President Taft shows the political dangers of impetuously firing aides on the grounds of disloyalty and then lying about the paper trail, Chief Justice Taft reiterated that the president has the constitutional authority to fire any officer he appoints. In the Myers case, Taft held that the need for "unity and coordination" in executive action gave the president the power to fire any executive officer he had appointed without being constrained by Congress. "The natural meaning of the term 'executive power' granted the President included the appointment and removal of executive subordinates," Taft wrote.
In all such cases, the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his executive subordinates to protect it….The moment that he loses confidence in the intelligence, ability, judgment or loyalty of anyone of them, he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and coordination in executive administration essential to effective action.
As Christopher Yoo, Steve Calabresi, and Anthony J. Colangelo note in "The Unitary Executive and the Modern Era," "Once power was delegated to the Chief Executive, Taft believed that "the president should be given broad and plenary control over those powers." They emphasize that Taft fired Gifford Pinchot in part because of his belief in the importance of unifying presidential control over the executive branch.
What would Taft say about the proposals in Congress to limit the president's power to fire the special prosecutor? There are decent arguments for and against the constitutionality of the bills—the constitutional skeptics harken back to Taft's opinion in Myers and to Justice Scalia's dissent in Morrison v. Olson, the 1988 case upholding the now lapsed independent counsel law; those supporting the constitutionality of the bill emphasize the 8-1 Morrison majority opinion. But the Roberts Court is more Taftian than the Rehnquist Court. For that reason, any Senators drafting bills to restrain the president's ability to fire Robert Muller should read Myers carefully—and be guided by the actions not of President Taft but of Chief Justice Taft.