Friday , April 13, 2018 - 5:00 AM2 comments
What if Donald Trump tries to fire Robert Mueller — and fails? The scenario isn't far-fetched. Under Department of Justice regulations, the special counsel, Mueller, can only be fired "by the personal action of the Attorney General" for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause."
President Trump, who doesn't much care for legal technicalities, has ramped up his attacks on the investigation into Russian meddling in the 2016 election and on Mueller himself. We know from the New York Times that he has at least twice tried to shut down the probe. Trump might yet try to fire Mueller directly; his press secretary, Sarah Huckabee Sanders said Tuesday that the president "certainly believes he has the power" to do so. Or Trump could try fire Mueller without rescinding the special counsel regulations. Or Trump and his Department of Justice might fail to follow proper procedure in withdrawing the regulations.
If that happened, Mueller very likely would refuse to budge. That is, he would announce that the president lacked the legal authority to fire him, and insist that he was still in office.
Trump wouldn't take that lying down. He might scramble to do it right. Or, he might, just as easily, insist that Mueller had been fired and that he had acted within his inherent constitutional authority as the executive. The president then might order Mueller out the door, or even order U.S. marshals to remove him.
The result could be a genuine constitutional crisis: A situation where there are two competing, mutually exclusive interpretations of the law adopted by relevant constitutional actors, neither of whom wants to back down.
That could put the issue into the courts. Like Mueller, the judiciary tends to be sticklers for the letter of the law. Federal district and appeals courts wouldn't much relish the prospect of intervening in a dispute within the executive branch. But they would be very tempted to insist that Trump follow the technicalities — and consider Mueller to be in office until Trump did.
The Supreme Court might not agree. The strongest basis for Trump's position would be that the regulation, issued by the attorney general, can't constitutionally or legally restrict the president's power to remove Justice Department employees. After all, the attorney general isn't Congress, and the regulation isn't a law. The attorney general is, constitutionally speaking, a creature of the president — as is Mueller.
Several justices would probably buy this executive-power reasoning, among them Clarence Thomas, Samuel Alito and Neil Gorsuch. That would leave the decision in the hands of Chief Justice John Roberts and Justice Anthony Kennedy.
While the nation waited for a judgment, the conflict could continue.
Why would Trump possibly be so foolish as to try to fire Mueller without either following regulation or ordering the attorney general (or, in this case, his proxy, Deputy Attorney General Rod Rosenstein) to withdraw it? The possibility stems from Trump's well-documented disrespect for legal process when it comes to presidential power, and in the unique politics of the situation.
Under normal circumstances, a president poised to take an official action that might be considered outside the law would first consult his lawyers. The correct lawyers to ask work in the Office of Legal Counsel in the Justice Department. That office is tasked with advising executive branch officials on the legality of prospective actions.
But when Trump issued his first travel ban in January 2017, he sidelined the Office of Legal Counsel altogether. It's hard to imagine him getting a formal opinion from that office on so potentially tumultuous an issue as firing the special counsel. After all, asking for an opinion means you can get a no. Trump wouldn't want the office to advise him that the firing would be illegal — so he very well might not ask.
Politically, asking Rosenstein to act also has big risks. Rosenstein could refuse to fire Mueller or refuse to rescind the regulation. Trump could fire him, triggering comparisons to President Richard Nixon's Saturday Night Massacre. Politically, Trump could very well judge himself better off by acting entirely on his own.
Last, there is Trump's instinctive talent at changing the subject. A protracted battle over whether he fired Mueller lawfully would inevitably distract everyone from the underlying questions of why Mueller was being fired, and whether doing so constituted obstruction of justice for purposes of impeachment or subsequent criminal prosecution.
It emerges that a showdown between Trump and a half-fired Mueller is far from unimaginable. Its consequences could include a protracted crisis, and a battle over legality that could end up in the Supreme Court.
Trump might not be gaming this out right now as he stews over the investigation. But you can be sure Mueller and his team are considering all contingencies. They will have answers ready — and those answers will be grounded in the letter of the law, and in standing up for the rule of law itself.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
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