The New Zealand Herald
Can Trump fire Mueller?
The special counsel regulation under which Robert Mueller was appointed gives the Attorney General or Acting Attorney General sole authority to fire Mueller and only for “good cause”, such as misconduct, dereliction of duty, incapacity or conflict of interest. Attorney General Jeff Sessions recused himself in March 2017 from overseeing the Russia investigation after the emergence of previously undisclosed contacts with the Russian ambassador, so that authority has fallen to the department’s No 2, Deputy Attorney General Rod Rosenstein. Mueller was appointed by Rosenstein following Trump’s dismissal of FBI director James Comey, whose agency had led the Russia investigation at its outset. Most legal experts say the special counsel regulation is constitutional and Trump must follow its protocol. Ignoring it would likely trigger a legal battle and a political firestorm. Rosenstein has told Congress he has confidence in Mueller, prompting concerns among some Trump critics that the President might fire Rosenstein and replace him with someone willing to end Mueller’s investigation.
On October 20, 1973, President Richard Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, the special prosecutor investigating the Watergate political scandal. Richardson refused Nixon’s order and resigned. Nixon then gave the same order to Deputy Attorney General William Ruckelshaus, who also refused and resigned. Solicitor General Robert Bork, next in line at the Justice Department at the time, finally followed Nixon’s order and fired Cox. The events, which became known as the “Saturday Night Massacre”, proved a political disaster for Nixon. Another special prosecutor was appointed and the Watergate investigation continued, leading to the President’s resignation the following year in the face of near-certain impeachment.
Who would come next?
If Rosenstein were to resign in protest over an order to fire Mueller, the task of overseeing Mueller’s investigation would typically fall to the Associate Attorney General, the No 3 official at the Justice Department. The person who held that position, Rachel Brand, has stepped down and taken a post at Walmart. Jesse Panuccio, the Principal Deputy Associate Attorney general, is doing her job until a replacement is confirmed. But Panuccio does not take Brand’s place in the department’s succession order, legal experts said. Until Trump formally replaces Brand, the task of overseeing Mueller in the event of Rosenstein’s removal would fall to Solicitor General Noel Francisco, according to an internal Justice Department memo on succession from November 2016 that is still in effect.
Another replacement tactic?
Trump could potentially fire Rosenstein or Sessions and name a replacement who would follow an order to fire Mueller. The Federal Vacancies Reform Act of 1998, which lays out general rules for temporarily filling vacant executive branch positions, could be interpreted as allowing the President to replace Sessions or Rosenstein on an interim basis with a Cabinet member who has already been confirmed by the Senate.
If Trump removed Mueller, the special counsel could seek a temporary restraining order blocking his removal on the grounds that there was not good cause, said Jed Shugerman, a professor of constitutional law at Fordham University Law School.