THE TEMPTING OF LITTLE FINGER:

As acting attorney general, Bork appointed a new special prosecutor, Leon Jaworski. He then issued a regulation that "the president will not exercise his constitutional powers to effect the discharge of the special prosecutor or to limit the independence that he is hereby given." It went on to specify that the special prosecutor could be terminated only for "extraordinary improprieties," and even then, Nixon could do it only with a "consensus" of the House and Senate majority and minority leaders, and the chairmen and ranking members of the chambers' judiciary committees. Bork codified these restrictions in federal regulations, and told the news media that Nixon had agreed to them.

With doubts sown about Nixon's commitment to the rule of law, Bork devised a solution that brought the branches of government together; rather than waiting for Congress to regulate the firing of prosecutors, he seized the initiative and invited Congress in from the start. His maneuver deftly sidestepped the most serious constitutional problems with legislation, because the executive branch voluntarily was bringing Congress into the picture. Unfortunately, the Bork regulations have lapsed.

Both of us have been head of the solicitor general's office, where Bork served. But more important, each of us has struggled with these problems for a long time. One of us, Mr. Starr, investigated President Bill Clinton under the Independent Counsel Act; the other, Mr. Katyal, drafted the special counsel regulations in the Clinton administration that now govern the appointment of Mr. Mueller. We come at this from different sides of the aisle but share the conviction that President Trump's Justice Department should issue modern-day Bork regulations.

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