Law murky on re­moval of coun­sel

Le­gal an­a­lysts de­bate what con­sti­tu­tional author­ity Trump has to fire Mueller.

Los Angeles Times - - THE NATION - By David G. Sav­age david.sav­age@la­ Twit­ter: DavidGSav­age

WASH­ING­TON — As Pres­i­dent Trump looks at ways to get rid of the spe­cial coun­sel lead­ing the in­ves­ti­ga­tion of Rus­sian med­dling in last year’s elec­tion, the in­tri­cate rules de­signed to en­sure the in­de­pen­dence of such in­quiries may be about to face their first real test.

The rules were put in place nearly 20 years ago to cope with what the Jus­tice Depart­ment called the “ex­tra­or­di­nary cir­cum­stances” of an in­ves­ti­ga­tion into pos­si­ble crimes or cor­rup­tion that could in­volve the pres­i­dent — the one of­fi­cial in whom the Con­sti­tu­tion vests the ex­ec­u­tive power.

Given the ob­vi­ous sen­si­tiv­ity, the reg­u­la­tions sought to in­su­late spe­cial coun­sels by pro­vid­ing that they “may be dis­ci­plined or re­moved only by the per­sonal ac­tion of the at­tor­ney gen­eral” and only for spec­i­fied rea­sons, such as mis­con­duct or con­flict of in­ter­est.

In the cur­rent in­quiry by spe­cial coun­sel Robert S. Mueller III, Trump, who is both the chief ex­ec­u­tive and a po­ten­tial tar­get, has re­peat­edly sig­naled he wants it to end.

And if Trump is re­ally de­ter­mined and will­ing to take the po­lit­i­cal heat, some le­gal ex­perts say, the care­fully crafted rules de­signed to pro­tect the in­de­pen­dent coun­sel may not be enough to re­strain him.

“The bot­tom line is that Pres­i­dent Trump has the raw power to fire Mueller — de­spite it be­ing a cat­a­stroph­i­cally bad de­ci­sion that should lead to his im­peach­ment,” said Neal Katyal, a for­mer act­ing solic­i­tor gen­eral un­der Pres­i­dent Obama and the lead au­thor of the 1999 Jus­tice Depart­ment spe­cial coun­sel rules.

The Con­sti­tu­tion puts the power of prose­cu­tion in the hands of the pres­i­dent, Katyal said, and that power can’t truly be lim­ited.

The cur­rent spe­cial coun­sel sys­tem is a le­gacy of both the Water­gate scan­dal in the 1970s and the Clin­ton im­peach­ment in the late 1990s.

Pres­i­dent Nixon de­cided to re­sign in 1974 un­der pres­sure from Repub­li­can se­na­tors rather than fight his im­peach­ment in the House.

Af­ter­ward, a wary Congress passed a new law with high hopes of head­ing off an­other such con­sti­tu­tional cri­sis. The law autho­rized the at­tor­ney gen­eral to turn to a panel of judges who in turn would choose an “in­de­pen­dent coun­sel” to in­ves­ti­gate the White House in fu­ture cases.

The un­in­tended re­sult was to cre­ate a new Wash­ing­ton in­dus­try of end­less, costly in­ves­ti­ga­tions that churned for years and of­ten ended in no sig­nif­i­cant charges.

By 1999, Re­pub­li­cans and Democrats agreed to let the in­de­pen­dent coun­sel law die and to re­turn the full prose­cu­tion power to the Jus­tice Depart­ment.

That led the Clin­ton ad­min­is­tra­tion in 1999 to adopt rules un­der which the Jus­tice Depart­ment agreed that in fu­ture cases, it would ap­point pros­e­cu­tors who were some­what in­de­pen­dent of that pres­i­dent’s ap­pointees.

But no one con­tends the spe­cial coun­sel is en­tirely shielded.

“The com­plex­i­ties of the le­gal is­sues aside,” said Univer­sity of Texas law pro­fes­sor Stephen Vladeck, “the pres­i­dent has a fair amount of le­gal author­ity to act, or at least at­tempt to act.”

One op­tion for Trump and his lawyers, Vladeck said, would be to try to end the in­ves­ti­ga­tion by re­scind­ing the spe­cial coun­sel reg­u­la­tions.

Trump’s lawyers could ar­gue the cur­rent chief ex­ec­u­tive is not bound by the reg­u­la­tions is­sued in an ear­lier ad­min­is­tra­tion.

“The reg­u­la­tions can’t trump the Con­sti­tu­tion,” said Josh Black­man, a law pro­fes­sor at South Texas Col­lege. “If Pres­i­dent Clin­ton wanted to bind him­self with those [spe­cial coun­sel] reg­u­la­tions, he could do so, but he can’t bind the next pres­i­dent.”

Such a move would prob­a­bly lead to a long court bat­tle over the le­gal­ity of the spe­cial coun­sel rules.

Some for­mer White House lawyers say the pres­i­dent is bound by the spe­cial coun­sel reg­u­la­tions as long as they re­main on the books. The reg­u­la­tions clearly say only the at­tor­ney gen­eral can dis­charge the spe­cial coun­sel.

“That is a re­quire­ment, and it’s bind­ing on the pres­i­dent,” said Wal­ter Dellinger, a White House lawyer un­der Pres­i­dent Clin­ton.

The Supreme Court ap­peared to en­dorse that view in the Nixon tapes de­ci­sion of 1974.

The jus­tices cited a Jus­tice Depart­ment reg­u­la­tion of that era that al­lowed the spe­cial prose­cu­tor to chal­lenge Nixon’s as­ser­tion of ex­ec­u­tive priv­i­lege.

“As long as this reg­u­la­tion re­mains in force, the ex­ec­u­tive branch is bound by it,” the court said in United States vs. Nixon.

On Thurs­day, two bills were in­tro­duced that would make it harder for Trump to ig­nore the cur­rent rules.

One from Sens. Thom Til­lis (R-N.C.) and Chris Coons (D-Del.) would cod­ify the cur­rent reg­u­la­tions into law. An­other from Sens. Lind­sey Gra­ham (R-S.C.) and Cory Booker (D-N.J.) would re­quire any re­moval of the spe­cial coun­sel to first be re­viewed by a panel of fed­eral judges.

Trump also might de­ploy the “nu­clear op­tion,” Vladeck said: The pres­i­dent sim­ply could is­sue an ex­ec­u­tive or­der to abol­ish the spe­cial coun­sel’s of­fice and fire Mueller.

“I think the bet­ter way to put it is that Trump could as­sert the con­sti­tu­tional author­ity to fire Mueller and shut down the in­ves­ti­ga­tion,” he said.

That could be risky, he added. It’s not clear the Supreme Court would up­hold such a move if the jus­tices had a chance to weigh in.

But the le­gal the­ory, known as the “uni­tary ex­ec­u­tive” and around since the Rea­gan era, has gained pop­u­lar­ity in con­ser­va­tive le­gal cir­cles.

Un­der this the­ory, the pres­i­dent “is con­sti­tu­tion­ally en­ti­tled to fire any­one in the ex­ec­u­tive branch,” said Peter M. Shane, an Ohio State Univer­sity law pro­fes­sor.

“I think the the­ory is wrong, but it’s out there and is part of the de­bate,” he said.

A third op­tion for Trump would be to work within the ex­ist­ing reg­u­la­tions and ask — or or­der — the at­tor­ney gen­eral to fire Mueller. That’s com­pli­cated in the cur­rent case be­cause Atty. Gen. Jeff Ses­sions has re­cused him­self from any role in the in­ves­ti­ga­tion. Deputy Atty. Gen. Rod Rosen­stein is the act­ing at­tor­ney gen­eral for any is­sues in­volv­ing the Rus­sia in­ves­ti­ga­tion, and he’s al­ready told Congress he would not fire Mueller with­out a clear, le­gal jus­ti­fi­ca­tion.

If there is a point of agree­ment among the con­sti­tu­tional ex­perts, it is that a move to shut down the Rus­sia in­ves­ti­ga­tion would set off a po­lit­i­cal back­lash.

Gra­ham said re­cently that “any ef­fort to go af­ter Mueller could be the be­gin­ning of the end of the Trump pres­i­dency un­less Mueller did some­thing wrong.” Other se­na­tors have made sim­i­lar state­ments.

“The real ques­tion is not whether the pres­i­dent has a le­gal right to fire spe­cial coun­sel Mueller,” Vladeck wrote last month, “but whether such a le­gal move might nev­er­the­less pro­voke his cur­rent sup­port­ers in Congress to turn against him.”

An­drew Harnik As­so­ci­ated Press

ROBERT S. MUELLER III is lead­ing the in­ves­ti­ga­tion into Rus­sian med­dling in last year’s elec­tion.

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