Editor's Note: This column originally appeared in December.
White House attorney Ty Cobb has reportedly built up President Trump’s expectation that special counsel Robert Mueller’s Russia investigation would be winding down by Christmas. But now that Mueller has secured the guilty pleas of former national security adviser Michael Flynn and Trump campaign adviser George Papadopoulos, and is pursuing charges against former Trump campaign chairman Paul Manafort and his deputy, Rick Gates, it’s beginning to look a lot like Mueller’s investigation is ramping up.
The widening gap between Trump’s expectations and reality increases the odds that he will eventually attempt to stop the investigation.
Here’s the rub: As we explain in a new report from the Presidential Investigation Education Project, a joint effort of the American Constitution Society and Citizens for Responsibility and Ethics in Washington, removing Mueller would not be easy. The risks to the president of doing so are prohibitive, and if he went ahead and tried, Mueller’s firing could likely be challenged successfully in court.
It is also likely that the investigation (or aspects of it) would survive Mueller’s termination.
The Justice Department regulations that govern Mueller’s appointment are clear: Only the attorney general can fire the special counsel. Because Attorney General Jeff Sessions has recused himself from the investigation of matters relating to the Trump campaign, the authority to appoint, monitor and (if appropriate) dismiss Mueller is wielded by Deputy Attorney General Rod Rosenstein. The regulations also state that the special counsel can only be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.” We believe that Rosenstein, who decided a special counsel was needed and appointed Mueller, would not fire Mueller absent very good cause.
And let us be very clear: There is absolutely no basis for arguing that there is any cause to fire Mueller under this standard. The attempts by the White House and its allies to conjure up “conflicts” and suggest that the investigation has exceeded its scope are way off base. Indeed, as we point out, Mueller, or perhaps a member of his staff, is likely to be able to challenge a termination as a violation of the regulation, especially if the termination were accompanied by a defamatory statement about the special counsel.
Nor does the president have inherent authority to fire the special counsel. This bogus argument is based on the “unitary executive” theory, which posits that the president wields all discretionary executive power and so has unchecked power to direct lower-level executive officers — including Mueller.
The Supreme Court rejected this theory when it upheld congressional limits on the president’s ability to remove an independent counsel, the precursor to the special counsel. To the extent that the president instructs Sessions or Rosenstein to withdraw the special counsel regulations, there may be procedural obstacles, including the possibility that such action would require notice-and-comment rulemaking.
Even if the White House could navigate these obstacles and find a way to fire Mueller in a manner that complied with existing law, the president would still have reason not to: Firing Mueller would compound the president’s criminal exposure for obstructing justice and could easily trigger a premature end to his presidency.
As two of us have already detailed, there is substantial evidence that the president obstructed justice by asking FBI Director James Comey to stop investigating Flynn and ultimately terminating him. Mueller’s firing would likely yield the same analysis. Indeed, the evidence against the president would be even stronger because it would be easier to prove that he was acting with a corrupt intent to stop ongoing criminal and congressional investigations.
There would also be fully justified comparisons to the Saturday Night Massacre, in which President Nixon managed to get special counsel Archibald Cox fired, but only after both his attorney general and deputy attorney general resigned in protest. The episode ultimately hastened the demise of Nixon's presidency; Trump could expect a similar result.
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We think it unlikely that the president would solve any problems by firing Mueller. We believe, and Watergate provides an instructive example, that the investigation of the president for obstruction of justice and possible collusion with Russia would continue even if the president took that calamitous step. The special counsel’s office, staff and records will not simply disappear if Mueller is removed, nor will the ongoing criminal prosecutions of Manafort and Gates, or the grand juries that Mueller has convened to hear testimony and receive evidence.
And though they have played a limited role thus far, the several congressional investigations into related matters serve as a fully independent backstop to the criminal justice system. No legal technicalities or speculative “unitary executive” arguments can prevent Congress from collecting evidence and determining that the president has abused power and must be removed.
Even so, the Mueller investigation is too important to leave to chance, no matter how small. Despite all these obstacles, there is still an urgent need for Congress to enact one of two bipartisan Senate proposals to protect the special counsel. Both would make it impossible for the president to effectuate a firing by simply withdrawing the Justice Department’s special counsel regulations. Unlike regulations, statutes cannot simply be withdrawn by the agency. Both proposals would also make it much easier for the special counsel to challenge his removal — thereby decreasing the likelihood that the president could justify a termination with pretext.
Congress should foreclose any possibility of Mueller’s removal by passing one of these bills, rather than waiting to find out whether the investigation will outlast the president’s patience.
Noah Bookbinder is the executive director of Citizens for Responsibility and Ethics in Washington and a former federal corruption prosecutor. Norman Eisen, a senior fellow at the Brookings Institution and chairman of CREW, was former chief ethics adviser to President Obama. Caroline Fredrickson is president of the American Constitution Society. Follow them on Twitter: @NoahBookbinder, @NormEisen, @crfredrickson