Robert Mueller, the special counsel appointed to investigate and potentially bring criminal charges in connection to Russian interference in the presidential election, could join those ranks, if Trump were to decide he’s tired of the investigative “cloud” hanging over his administration. There’s at least one report suggesting he is considering it.
But can he lawfully dismiss a special counsel whom he had no role in appointing?
You may recall that Attorney General Jeff Sessions recused himself from any investigative matters related to Russia, and that it fell to the next-in-command, Deputy Attorney General Rod Rosenstein, to make the call to appoint Mueller.
In theory, that chain of command doesn’t matter. The Constitution vests the president with broad powers to fire just about any appointee in the executive branch, all of whom serve at his pleasure. Even Comey acknowledged that much in his Senate testimony last week.
Which explains why it wasn’t controversial when, without notice, Trump ordered the firing of 46 Obama-era federal prosecutors back in March ― including Bharara, who had received assurances during the transition that he’d stay on as Manhattan’s top federal cop.
Neal Katyal, a former Department of Justice official who spent 18 months working on the federal regulations that allowed for Mueller’s appointment, made that much plain when he told MSNBC’s Rachel Maddow last month that Trump’s authority is virtually plenary in this area.
“At the end of the day, our Founders gave us a system where the president does have the power to take care that the laws be faithfully executed,” Katyal said. “That means that he could order the dismissal of Mueller.”
Whether going that route would be a good idea for Trump, given the lessons of history and Watergate, is a different question. There’s certainly a chance that it could cause enough alarm in Congress to lead to impeachment proceedings and bring about the downfall of his administration once and for all.
But putting that aside, the regulations Katyal helped write were crafted with an eye toward giving the president some pause before he or she removes a duly appointed special counsel.
The first barrier is the attorney general. Since Sessions is recused, the text of the regulations would leave it up to Rosenstein — and only him by his “personal action” — to remove Mueller for “good cause.”
Rosenstein “may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,” reads the regulation, which directs the deputy attorney general to put in writing the “specific reason” for the firing.
As history would have it, the Supreme Court explained — in the case that required President Richard Nixon to turn over the Watergate tapes, no less — that a regulation of this sort carries the force of law, and that, short of repealing it, the executive branch is “bound to respect and to enforce” it.
Acknowledging the limits of his own authority, Rosenstein suggested to a Senate panel on Tuesday that he wouldn’t just take marching orders from Trump if asked to do something that’s not prescribed in the regulations.
“I’m not going to follow any orders unless I believe that those are lawful and appropriate orders,” Rosenstein said. He later added that even finding “good cause” to dismiss the special counsel would not be a rubber stamp: “If there were good cause I would consider it. If there were not good cause, it wouldn’t matter to me what anybody says.”
In response to a “PBS Newshour” report that Trump is “weighing” the option of firing Mueller, Georgetown law professor Marty Lederman wrote at the blog Just Security that Trump could theoretically rescind or make less stringent the 1999 special counsel regulations. However, Lederman said he thought it “virtually unimaginable” that Rosenstein would go that route.
“I assume Rosenstein won’t be party to such a farce,” Lederman wrote, suggesting that the deputy attorney general might very well defy such an order to fire Mueller and resign.
If Rosenstein took the high road, some critics of Trump hope that Congress could then rise to the occasion and hold the president accountable. However tepidly, House Speaker Paul Ryan (R-Wis.) suggested on Tuesday that he’d stand up to the president if there’s an attempt to meddle with Mueller’s investigative efforts.
In a lengthy article outlining the bevy of legal and non-legal complications with firing Mueller, Jack Goldsmith, a former George W. Bush official in the Justice Department’s Office of Legal Counsel, indicated that congressional action would be the last — and maybe the only — line of defense.
“If the crazy scenario that got me to this point in the hypothetical decision chain materializes, Congress would rise up quickly to stop the President, and the pressure on the cabinet would be enormous as well,” Goldsmith wrote. “If I am naive in thinking this, then we are indeed in trouble.”
Katyal put that nightmare scenario in starker terms when he explained to Maddow how the law is supposed to work: “The president does effectively have the power to get rid of Mueller. It would be a horrible disaster and perhaps... the fall of the government. But he does have that power.”