Can Trump Fire Mueller?

Ken AshfordCourts/Law, L'Affaire Russe, Republicans, Trump & AdministrationLeave a Comment

This is complicated and I don’t have much time. So hold on.

Trump does not have the legal authority to fire special prosecutor Mueller directly, but that doesn’t mean Trump can’t TRY.  For Trump to fire Mueller, he TECHNICALLY must order the Attorney General to fire Mueller.  If Trump tried to fire Mueller directly, Mueller could (and probably would) choose not to “recognize” Trump’s independent authority to fire him.

But wait, there’s another problem. If Trump asked Attorney General Sessions to fire Mueller — well, Sessions technically can’t either, because he recused himself from all matters relating to Russia… and that would presumably mean that he is recused from hiring or firing the special counsel looking into Trump-Russia collusion. Then again, Sessions was the one who fired Comey, and he probably should not have for the same reason.  So if Sessions tried to fire Mueller on Trump’s order, Mueller could choose not to “recognize” Mueller’s independent authority to fire him.

The correct person to fire Mueller (on order from Trump) is deputy AG Rob Rosenstein, the one who appointed Mueller to special prosecutor.

Whoever does it, it is very much like the Saturday Night massacre in Watergate.  There, Nixon told his attorney general Elliott Richardson to fire independent special prosecutor Archibald Cox. Richardson refused so Nixon fired him.  Nixon then told Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus also refused and Nixon fired him too. Nixon then ordered the Solicitor General of the United States, Robert Bork, as acting head of the Justice Department, to fire Cox. Both Richardson and Ruckelshaus had given personal assurances to Congressional oversight committees that they would not interfere, but Bork had not. On November 14, 1973, federal district judge Gerhard Gesell ruled firing Cox was illegal absent a finding of extraordinary impropriety as specified in the regulation establishing the special prosecutor’s office.

It was a constitutional crisis.

The situations between now and then are strikingly comparable. The question is if Rosenstein will carry out Trump’s bidding, or if Sessions would, or if Trump would simply try to do it directly…. if he tried at all.

When questioned last week by Senator Kamala Harris of the Senate Intelligence Committee (who seemed to be looking well down the road), Rosenstein refused to say whether he would exercise his authority to fire Mueller if it ever came down to that.  At least, he refused to say in open session.

With all that said, I don’t think Trump will try to fire Mueller, despite what Newt Gingrich and others are saying.  Not only are the minefields legally (see above), but the political fallout just might be too much — even for Republicans.  After Nixon tried to fire Cox, public support crashed for Nixon (what little remained) and impeachment rose rapidly in the polls.

At that point, Republicans in Congress would join Democrats to appoint an independent counsel (just like they did in Watergate, where they appointed Jaworski).  Heck, it could be Mueller again.

So huge risk, low reward. I don’t think Trump would try this, but God knows what advice he is getting, and whether he will follow it.

UPDATE:  Rosenstein just happens to be testifying before the Appropriations Committee today.

He also says AG Sessions “theoretically” has power to fire Mueller.

Aw, Susan Collins goes to the direct question: