If Trump Cans Mueller, Here’s How It Will Go Down

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Kevin Daley Supreme Court correspondent
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Speculation abounds that President Donald Trump may fire Robert Mueller, special counsel in the Department of Justice’s investigation of Russian interference in the 2016 presidential election.

As a legal matter, it would be unprecedented for the president to fire a special counsel on his own authority. Should Trump decide to remove the special counsel, he could pursue two alternatives: order the Department of Justice to fire Mueller, or fire Mueller himself.

First Option

Deputy Attorney General Rod Rosenstein appointed the special counsel, pursuant to 28 USC § 510, which reads:

The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

This seems fairly straightforward as a statutory matter — the power to appoint a special counsel rests exclusively with the attorney general. Therefore, only the AG may dismiss him (or, in this instance, Rosenstein, as Attorney General Jeff Sessions has recused himself from involvement in the Russia probe).

What’s more, the relevant regulation governing the special counsel’s removal specifically provides that the special counsel may only be dismissed “by the personal action of the Attorney General.” The regulation also requires that he may only be removed for cause:

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

So, in the ordinary course of events, the AG can only remove special counsel for cause. Therefore, Trump would have to order Rosenstein to fire Mueller and hope that the DAG complies.

This is where things get especially complicated for the president. Trump could order Rosenstein to dismiss Mueller for one of the reasons named in the regulation, but as Jack Goldsmith explains, it is difficult to identify any wrongdoing on Mueller’s part, and Mueller could fight his dismissal in court. This leads to the second alternative.

Second Option

By following this second course, Trump could change the regulation by executive order, and then dismiss the special prosecutor himself.

This approach would be inconsistent with the presidency’s understanding of executive power in this area. At the height of the Watergate crisis, then-President Richard Nixon pursued the removal of special prosecutor Archibald Cox through the chain of command at the Department of Justice, instead of unilaterally firing him.

The chain of events ran as follows: Nixon ordered Attorney General Eliot Richardson to fire Cox. Richardson refused the order, prompting Nixon to fire him. Deputy Attorney General William Ruckelshaus then became the acting AG. He, too, refused Nixon’s order, and was relieved in short order. Solicitor General Robert Bork, later Ronald Reagan’s ill-fated Supreme Court nominee, became the acting AG and agreed to follow Nixon’s directive and fire Cox. Though Bork himself opposed the order, Richardson convinced him to carry it out, in the interest of ensuring stability and continuity at the Department of Justice.

The incident permanently lodged the phrase “Saturday Night Massacre” into the American political lexicon, but it also reflects the executive’s understanding of the dismissal power where inferior officers like special counsels are concerned. A hypothetical in which Trump unilaterally fires Mueller would depart from this historical interpretation.

And Mueller may well fight the legality Trump’s unilateral action, prompting a new crisis for the courts to settle.

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