Make it impossible to fire Robert Mueller
It would already be hard, but we need a fail-safe
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, 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 there is absolutely no basis for arguing that there is any cause to fire Mueller under this standard. Nor does the president have inherent authority to fire the special counsel. Even if the White House could find a way to fire Mueller in a way that complied with existing law, the president would still have reason not to: It would compound his criminal exposure for obstructing justice and could easily trigger a premature end to his presidency.
As two of us have 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. There would also be 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.
We think it unlikely that the president would solve any problems by firing Mueller. 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 the several congressional investigations into related matters are a fully independent backstop to the criminal justice system.
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 withdraw the Justice Department’s special counsel regulations. And both would make it much easier for the special counsel to challenge his removal.
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. Norman Eisen, a senior fellow at the Brookings Institution, is chairman of CREW. Caroline Fredrickson is president of the American Constitution Society.