Opinion

Opinion

Fire Mueller? Here's why it's likely Trump can't

Posted June 22

There has been much talk about whether President Donald Trump is considering firing Special Counsel Robert Mueller. In my view, this is just talk -- not so much because the President might not want to fire him, but because the rules governing the hiring and firing of the special counsel would make it very difficult for him to do so without triggering a congressional inquiry into whether he abused the power of his office.

In 1973, President Richard Nixon ordered the attorney general to fire Watergate Special Prosecutor Archibald Cox. At the time, the President, as the singular head of the executive branch, acted within his lawful authority, although the firing, which became known as the "Saturday Night Massacre," eventually contributed to Nixon's impeachment.

In the aftermath of the Watergate scandal, Congress passed the independent counsel statute. Under that law, the judiciary was given the power to appoint an independent counsel. The attorney general (and, therefore, the President), however, retained the authority to remove an independent counsel, but only for "good cause, physical or mental disability ... or any other condition that substantially impairs the performance of such independent counsel's duties."

If the attorney general removed an independent counsel, the law required the attorney general to submit a report to the court and to the judiciary committees of the Senate and the House specifying the facts found and the ultimate grounds for the removal. The constitutionality of this statute was upheld by the Supreme Court in Morrison v. Olson.

In the face of critics who pointed out that independent counsel investigations were very expensive, often overreaching, and unnecessarily protracted, and with little Congressional support for its continuation, the independent counsel law was allowed to expire on June 30, 1999.

A middle ground

Thereafter, the Justice Department sought to find a middle ground between the law that was in effect in 1973 (which allowed the President to fire a special prosecutor without a "for cause" showing) and the independent counsel statute (which only permitted removal for "good cause").

In 2010, the department promulgated executive regulations governing the appointment of special counsel. These regulations govern Special Counsel Mueller and can be found in the Code of Federal Regulations at 28 C.F.R. Sections 600.1-600.10.

On May 17, Deputy Attorney General Rod Rosenstein, acting under a general delegation of authority from Attorney General Jeff Sessions who had recused himself from matters relating to the investigation into the Russian government's efforts to interfere in the 2016 presidential election, concluded that, in order to ensure a full and thorough investigation of the matter and public confidence in its outcome, he needed to name a special counsel independent of the normal chain of command at the Justice Department. Accordingly, he appointed former FBI Director Mueller.

The special counsel stands in the place of the Department of Justice. Consistent with the scope of his or her jurisdictional mandate, the special counsel exercises "full power and independent authority, including all investigative and prosecutorial functions of any United States Attorney." (Section 600.6.) While the special counsel must comply with the rules, regulations, procedures, practices and policies of the Department of Justice (Section 600.7(a)), he is not subject to the day-to-day supervision of any official of the department (Section 600.7 (b)).

Most relevant to the question of whether the President can fire the special counsel is Section 600.7(d), which reads: "The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a special counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal." (Emphasis added.)

Thus, under the Justice Department's regulations, only the attorney general (or, in the case of his recusal, the deputy attorney general) can remove a special counsel and, then, only for the specific reasons enumerated in the regulation or for other good cause. If the attorney general were to determine that a special counsel's conduct did not rise to this level, the President would appear to be without direct recourse to fire the special counsel.

Trump has repeatedly expressed his displeasure with Special Counsel Mueller's investigation, calling it a witch hunt. Some of Trump's associates have indicated that the President was considering firing Mueller. White House spokeswoman Sarah Huckabee Sanders, however, has asserted that, while President Trump retains the right to fire him, "he has no intention to do so." At least for the time being.

How it could play out

What if the President were to change his mind? How might a decision to fire Mueller play out?

In the first instance, the President likely would reach out directly to Deputy Attorney General Rosenstein and ask him to fire Mueller.

Rosenstein likely would explain to the President that, under the Justice Department's regulations, he cannot lawfully fire the special counsel without a finding of good cause, i.e., that the special counsel engaged in misconduct, lacked capacity to oversee the investigation, had a conflict of interest, or engaged in conduct that provided a similar good cause basis.

The President then might ask Rosenstein to find that good cause exists. If no lawful basis were to exist for making such a finding (and, indeed, nothing to date indicates that there is any such evidence), I do not believe it likely that the deputy attorney general would remove Mueller. In my view, his refusal would be mandated by the regulations. Moreover, if Rosenstein were to fire Mueller, he would be required to notify the chairman and ranking minority member of the Judiciary Committee of each house of Congress and provide an explanation supporting his decision, which he would be hard-pressed to do under the circumstances. (Section 600.9(c)).

In the face of a refusal to fire, Trump might ask Rosenstein to remove or modify the "for cause" language in the Justice Department's regulations and then fire Mueller. Unlike the independent counsel statute that limited the President's authority to remove the independent counsel for good cause, the Department's executive regulations governing the hiring and firing of Mueller presumably could be changed by the President.

If Rosenstein ultimately were to refuse to fire the special counsel, he could resign or the President could fire him.

Were Rosenstein to resign or be fired, under the order of succession within the Justice Department, Associate Attorney General Rachel Brand would succeed him. She then would be placed in the same position as Rosenstein. That is, she could choose to fire the special counsel if she were to determine that good cause existed or if the regulations were modified to permit the special counsel's removal without good cause. Were she to refuse, she too could choose to resign or she could be fired.

Suppose, however, that Rosenstein or Brand or any successor (after the associate attorney general responsibility would reside with the US attorney for the Eastern District of Virginia) were to fire Mueller without good cause (or on the pretext of good cause) or upon the elimination of the good cause language from the regulations. Where would that leave us?

Put simply, the case likely would end up in federal court with the parties (the President, Congress, and the special counsel) seeking resolution of all of the questions a firing under these circumstances would raise.

Even if a court were to resolve these legal questions in favor of the President, I believe that the President's actions would raise serious questions about whether, by embarking down this path, he obstructed the investigation. In such a case, the House of Representatives would be well within its rights to consider pursuing an article of impeachment for abuse of power.

So, while it may be interesting to discuss the prospect of the President firing Mueller, in my view, it is unlikely to happen because, practically and, perhaps, legally, it could not happen without posing a serious threat to the Trump presidency.

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