There seems to be a widely shared belief that Donald Trump can fire Robert Mueller at will and the only thing restraining him is a fear that he might set off a shitstorm big enough to force congress to impeach him. In my opinion, if the threat of public outrage and congressional action were the only things holding him back, Trump would have done what it takes to fire Mueller a long time ago. I think what is actually holding Trump back is a very real possibility that Trump will tell Mueller “you’re fired!” and Mueller will calmly respond: “no.”
Our country has a system of checks and balances on how power can be wielded. The ultimate power, in my view, lies with Congress. The congressional power of impeachment is the most unchallengeable power that exists in our system of government. It is a power that is incredibly difficult for congress to wield — requiring impeachment by a majority of the House of Representatives and then conviction by a two-thirds majority of the Senate. For that reason, it is exceedingly rare that impeachment proceedings are commenced and even more rare that such impeachment results in a conviction.
Second to impeachment, in my view, the Supreme Court holds the most power. And the Supreme Court’s power is far easier to wield than the power of impeachment. I say impeachment is a greater power than the Supreme Court’s power only because, if Congress had the will, it has the power to impeach the justices of the Supreme Court if it wants. But with our congress divided the way it is politically, as a practical matter, the Supreme Court wields the greatest power in our country.
The courts have acted to prevent Trump’s administration from taking a number of actions in the areas of immigration, environment and other executive functions where the President thought he had unfettered discretion. The Supreme Court has thus far not been asked in anyway to weigh in on the matter of investigations into the President for any crimes he may have committed in connection with his presidential campaign or in obstructing the investigations into his campaign.
However, if Trump attempts to fire Mueller and Mueller decides to challenge that firing in court, Trump is very likely to be told he cannot fire him. If that were to happen, Trump would have even less leverage and ability to try to affect the investigation than he does now.
Assistant Attorney General Rod Rosenstein issued the following order appointing Mueller:
By virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C. §§ 509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of the Russian government,s efforts to interfere in the 2016 presidential election, I hereby order as follows:
(a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice.
(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James 8. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).
(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.
(d) Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.
The United States Code and Code of Federal Regulations provisions cited in the order are extremely important and set forth boundaries protecting the independence of the Special Counsel.
First notice that Robert S. Mueller III is appointed to serve. I’ve heard people suggest that Special Counsel as an entity may be protected but that Mueller is not individually protected. I completely disagree. The authority’s given to the Special Counsel are vested in Mueller and any attempt to move against him personally are attempts to move against the Special Counsel.
28 U.S.C. sections 509, 510, and 515 fully authorize the delegation of all powers of the Attorney General to a Special Counsel. Therefore, in connection with all matters identified in the Rosenstein order, who is himself acting Attorney General with respect to all of the matters identified in the letter by virtue of Jeff Sessions recusal, Robert Mueller is effectively the Attorney General subject to certain restrictions in C.F.R. sections 600.4 through 600.10.
For purposes of this discussion, sections 600.4 through 600.8 are particularly relevant and are reproduced in their entirety below with some particularly important language bolded:
§ 600.4 Jurisdiction.
(a)Original jurisdiction. The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.
(b)Additional jurisdiction. If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel's jurisdiction or assign them elsewhere.
(c)Civil and administrative jurisdiction. If in the course of his or her investigation the Special Counsel determines that administrative remedies, civil sanctions or other governmental action outside the criminal justice system might be appropriate, he or she shall consult with the Attorney General with respect to the appropriate component to take any necessary action. A Special Counsel shall not have civil or administrative authority unless specifically granted such jurisdiction by the Attorney General.
§ 600.5 Staff.
A Special Counsel may request the assignment of appropriate Department employees to assist the Special Counsel. The Department shall gather and provide the Special Counsel with the names and resumes of appropriate personnel available for detail. The Special Counsel may also request the detail of specific employees, and the office for which the designated employee works shall make reasonable efforts to accommodate the request. The Special Counsel shall assign the duties and supervise the work of such employees while they are assigned to the Special Counsel. If necessary, the Special Counsel may request that additional personnel be hired or assigned from outside the Department. All personnel in the Department shall cooperate to the fullest extent possible with the Special Counsel.
§ 600.6 Powers and authority.
Subject to the limitations in the following paragraphs, the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney. Except as provided in this part, the Special Counsel shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.
§ 600.7 Conduct and accountability.
(a) A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures. Should the Special Counsel conclude that the extraordinary circumstances of any particular decision would render compliance with required review and approval procedures by the designated Departmental component inappropriate, he or she may consult directly with the Attorney General.
(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3).
(c) The Special Counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice. Inquiries into such matters shall be handled through the appropriate office of the Department upon the approval of the Attorney General.
(d) 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.
§ 600.8 Notification and reports by the Special Counsel.
(a)Budget.
(1) A Special Counsel shall be provided all appropriate resources by the Department of Justice. Within the first 60 days of his or her appointment, the Special Counsel shall develop a proposed budget for the current fiscal year with the assistance of the Justice Management Division for the Attorney General's review and approval. Based on the proposal, the Attorney General shall establish a budget for the operations of the Special Counsel. The budget shall include a request for assignment of personnel, with a description of the qualifications needed.
(2) Thereafter, 90 days before the beginning of each fiscal year, the Special Counsel shall report to the Attorney General the status of the investigation, and provide a budget request for the following year. The Attorney General shall determine whether the investigation should continue and, if so, establish the budget for the next year.
(b)Notification of significant events. The Special Counsel shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.
(c)Closing documentation. At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.
So, the Special Counsel has the ability to conduct his investigation and prosecute cases arising from his investigation as he sees fit with only minimal oversight from the Attorney General. The power to investigate includes full authority to investigate all efforts to obstruct his investigation, which is particularly relevant in this situation.
The scope of Mueller’s investigation, as set forth in the Rosenstein order is: “to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).
Trump can’t fire Mueller. The AG has to. Even if Trump does a Saturday night massacre type scenario in order to get a compliant AG to do the job, in order to tell Mueller not to pursue a certain course of investigation, the AG will have to notify congress. The AG can only remove Mueller for cause, and is required to notify Mueller, in writing, what the cause is.
Now imagine the context in which this AG will be attempting to fire Mueller, Trump will have just fired at least two, and probably more Senate approved officers of the Department of Justice in order to get to somebody who the Senate will not have approved of in order to have that person fire Mueller.
That person will have to then attempt to fire Mueller for cause. The idea that he is firing Mueller for any reason at all other than that the President is afraid of the political and criminal implications of the investigation on himself will be completely laughable.
I think all Mueller will have to do is go to court and present evidence of the President’s obstruction, including the installation of a pliable AG for the clear purpose of trying to hinder the investigation and the court will simply say no.
At that point Trump will be like a bug helplessly pinned to one of those maps that investigators are always shoving pins in on T.V. shows.
I do think the President may have an opportunity to get rid of Mueller by dumping Sessions and Rosenstein and then installing an AG who will refuse to renew Mueller’s budget in October, but I don’t think Mueller intends to give them the chance to do that.
Raiding Michael Cohen’s office yesterday was basically Mueller getting right up in Trump’s face and saying “go ahead and try to fire me. I dare you.” And Trump’s response was to have a televised meltdown.
Trump is figuratively handcuffed when it comes to firing Mueller and before long I expect he will be exchanging those figurative handcuffs with a literal pair.