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  • Writer's pictureMario Nicolais

Republicans in Congress are courting a constitutional crisis

Just over one year ago, Robert Mueller began his investigation into Russian interference in the 2016 presidential campaign. At this point, the fate of the investigation may be more important than the actual findings. Under constant threat from an irritable president, the hair holding Damocles sword over Mueller frays a little more every day Republicans fail to protect the special counsel.

An inflamed irritation to President Donald Trump, every week seems to bring more speculation that Trump will fire Mueller. It is worse than any conflated cliffhanger from Trump’s non-reality network programming.

Will he or won’t he?

Will Trump cooperate or curtail the special prosecutor’s investigation into his campaign?

Will Trump again storm into the White House counsel’s office and demand Mueller’s head or will cooler heads talk him back off the precipice?

Will Trump instead fire Attorney General Jeff Sessions or Deputy Attorney General Rod Rosenstein and make a replacement do the dirty work?

The endless permutations of the same basic question permeate almost every news program on networks and cable alike. Talking heads in the legal community have made a living bouncing from interview to interview discussing endless scenarios and ramifications.

Without more concrete action from Republican leaders, though, it is hard to believe they really worry about anything more than a “campaign crisis.” Trump firing Mueller less than five months before the mid-term elections would be the rush of water away from land before a tsunami sweeps over it. Republican campaigns would become referendums on the rule of law rather than partisan contests against Democrats.

Campaign concerns aside, true conservatives understand that the threat of a constitutional crisis is very real. Any action by Trump to end the Mueller investigation constitutes a direct challenge to both the legislative and judicial branches of government. But it isn’t by itself a crisis. Rather, the looming danger rests in the response by Congress. The greatest threat? Republicans in Congress choose to do nothing.

If Trump fires Mueller and Congress fails to respond, a precedent will be set for every president that follows. Conservatives already weary of the imperial presidency recognize that presidential power will become unbounded by the checks and balances put in place by our country’s founders. Trump and every president that follows would literally be unmoored from the protections so carefully crafted and so long held sacrosanct in our constitution.

This is not a theoretical exercise in hand-wringing. In 2013 Senate Democrats chose to employ the “nuclear option” and eliminate the 60-vote majority needed to approve most judicial and cabinet appointees. Less than four years later, Democratic Minority Leader Chuck Schumer lamented the congressional abdication of power as Trump nominees sailed through the Senate on a strict majority vote. Republicans completed the evisceration of the filibuster for presidential nominees by lowering the approval vote necessary for Supreme Court justices.

What goes around comes around.

If Trump fires Mueller with impunity, the next Democratic president won’t be constrained by the threat of a special counsel. Future Bill Clinton’s won’t have to worry about the presence of Kenneth Starr. Presidents from any party will no longer be answerable or accountable to Congress or the American people. That is a real crisis.

Fortunately, Republicans in Congress do not need to wait for Trump to act. Preemptive measures in the form of bills protecting Mueller’s investigation through its conclusion have already been proposed. Republican leadership just needs to find the courage to put them to a vote. The Constitution just might depend on it.

Mario Nicolais is an attorney and Denver Post columnist who writes on law enforcement, the legal system and public policy. Follow him on Twitter: @MarioNicolaiEsq

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