With Scant Precedent, White House Insists Trump Could Fire Mueller Himself

WASHINGTON — As President Donald Trump continued to fume on Tuesday about the Justice Department’s raids on the office and hotel room of his longtime personal lawyer, the White House press secretary, Sarah Huckabee Sanders, made a provocative claim: The president, she said, believes he has the legal authority to fire Robert Mueller, the special counsel leading the Russia investigation.

The assertion by Sanders was surprising because the general understanding has been that Trump himself cannot directly fire Mueller, and that he would instead have to order the deputy attorney general, Rod Rosenstein, who is the acting attorney general for the purpose of the Russia inquiry, to do so. Attorney General Jeff Sessions recused himself from any involvement in the investigation.

Rosenstein has repeatedly said that he will refuse any order to fire Mueller unless he decides the special counsel committed misconduct. If the general understanding is correct, then, Trump would probably have to fire Rosenstein and hunt for a successor willing to carry out the order — echoing the “Saturday Night Massacre” during the Watergate scandal.

In 1973, President Richard Nixon decided to force the Justice Department to fire Archibald Cox, the first special counsel investigating Watergate. Both the attorney general and the deputy attorney general resigned rather than carry out those orders before the solicitor general, then the No. 3 official in the department, finally agreed to do so. The episode was a milestone in the eventual decision by the House to begin impeachment proceedings.

Sanders’ initial remark on Tuesday was vague. But when pressed to clarify whether she meant only that Trump could direct Rosenstein to fire Mueller, she insisted instead that “a number of individuals in the legal community and including at the Department of Justice” have said that Trump himself has the power to oust him.

“We’ve been advised that the president certainly has the power to make that decision,” she added.

But there is scant precedent supporting the notion that Trump has lawful authority to bypass the acting attorney general and directly fire Mueller, legal scholars said.

Martin S. Lederman, a Georgetown University law professor who served in the Office of Legal Counsel during the Obama administration, pointed to a series of Supreme Court cases in which justices across generations have said the power to remove a government employee resides with the official — or a successor — who appointed the person, unless Congress has enacted a statute making an exception.

Among them, in a seminal 1839 case, the Supreme Court said the heads of departments appointed inferior officials and had the power to remove them, adding “the president has certainly no power to remove.” As recently as in a 2010 case, Chief Justice John G. Roberts Jr., observed that if Congress had vested in a department head the power to appoint an inferior officer, “it is ordinarily the department head, rather than the president, who enjoys the power of removal.”

Against that backdrop, Lederman argued: “Surely if Richard Nixon could have fired Archie Cox himself, he would have done so to avoid the Saturday Night Massacre. He didn’t because he didn’t have the authority to do so.”

Still, Jack L. Goldsmith, a Harvard Law School professor and former head of the Office of Legal Counsel in the Bush administration, said the previous Supreme Court statements did not arise in a context exactly like a situation in which Trump said he had the constitutional power to fire Mueller directly and then tried to do it. Goldsmith said it was unclear what would happen then.

“I agree that the proper and most legally sound route would be to order Rosenstein to dismiss Mueller and then fire him if he doesn’t comply,” Goldsmith said. “That is clearly the right way under the law. That is the right way under the precedents. And that would be the legally safer way to do it. But there is an argument that he could do so directly and that question has never been tested in a context exactly like this.”

Further complicating matters is the question of how much the Justice Department’s regulation for special counsels is protecting Mueller.

People who do not want the Trump administration to fire Mueller have taken comfort from the fact that when Rosenstein appointed Mueller, he stated that a portion of those regulations — including a provision that says only the attorney general can fire a special counsel and only for misconduct — would be “applicable” to Mueller.

In a statement criticizing Sanders’ statement on Tuesday, Matt House, a spokesman for the Senate minority leader, Sen. Chuck Schumer, D-N.Y., said, “The DOJ regulations could not be more clear.”

In the 1974 case over the Watergate tapes, the Supreme Court cited a similar regulation protecting Cox’s successor, Leon Jaworski, from being fired without good reason and said that unless it was rescinded, “the executive branch is bound by it.”

Still, one novel question is whether a president must obey a Justice Department regulation.

Another is whether the regulation is actually protecting Mueller from arbitrary firing by anyone other than Rosenstein, specialists said. The last question is raised by the fact that Rosenstein did not technically appoint Mueller under that regulation.

Rather, he invoked statutes in which Congress authorized the attorney general to appoint special lawyers for specific investigations, but those statutes include no special protections.

That has left it murky whether Rosenstein’s statement that the regulation applies to Mueller is legally binding or was more like a personal promise about the approach he would follow as Mueller’s supervisor. Still, Lederman said the distinction might make little difference in practice, since any successor to Rosenstein who was determined to fire Mueller could also just rescind Mueller’s appointment letter or the regulation itself.

“You’re already way out there if you’re willing to fire Mueller, so if you have to get rid of the regulation or the appointment letter to do so, that person, whoever that would be, would probably be happy to do so,” he said.