Firing Mueller: the Echoes of Watergate Get Louder and Louder
This was the response of Adam Schiff (CA-D), the ranking Democrat on the House Intelligence Committee to the media reports that Trump is considering firing Mueller.
“A longtime friend of President Trump said on Monday that Mr. Trump was considering whether to fire Robert S. Mueller III, the special counsel investigating possible ties between the president’s campaign and Russian officials.”
“The startling assertion comes as some of Mr. Trump’s conservative allies, who initially praised Mr. Mueller’s selection as special counsel, have begun trying to attack his credibility.”
“The friend, Christopher Ruddy, the chief executive of Newsmax Media, who was at the White House on Monday, said on PBS’s “NewsHour” that Mr. Trump was “considering, perhaps, terminating the special counsel.”
“I think he’s weighing that option,” Mr. Ruddy said.
“His comments appeared to take the White House by surprise.”
“Mr. Ruddy never spoke to the president regarding this issue,” Sean Spicer, the White House press secretary, said in a statement hours later. “With respect to this subject, only the president or his attorneys are authorized to comment.”
This morning Ruddy was again speaking to the media, pushing back at Sessions-points out that he never said he spoke to Trump just that he is considering firing Mueller. How does he know then?
But this is the Trump WH and if someone disagrees with them, the best policy is to believe that other person. Ruddy may have his own game here-who knows what? Maybe this is all a choreographed trial balloon for something that Trump and Ruddy both want done. Who knows
What does seem clear is that if he fires Mueller, then it’s officially Worse Than Watergate-assuming it wasn’t already. After all, Nixon only fired the Special Prosecutor not the FBI Director too.
Seth Abramson has a good analysis of what happens if he fired Mueller. No matter what it would be very messy-Mueller might simply refuse to stand down. Rosenstein almost certainly would refuse to fire Mueller and Sessions himself would probably lay low as if he did fire Mueller or ‘encourage him to quit’ this would put him in line for more obstruction of justice-add that to his apparent obstruction in the firing of Comey.
(1) There isn't any Special Counsel statute, as the last one was allowed to expire by Congress. So Mueller has a job under DOJ regulations.
— Seth Abramson (@SethAbramson) June 13, 2017
Yes, but-if Trump did have the temerity to do this then this would make the return of the Special Counsel statute quite likely.
Look at it this way: Trump thought firing Comey would take the heat off but it led to the opposite-to Mueller’s appointment. Likewise, firing Mueller would just make it worse. Perhaps that leads to Special Counsel statute. However it worked out, Trump’s Russia problem would get worse not better.
— Democratic Coalition (@TheDemCoalition) June 12, 2017
Jack Goldsmith at Lawfare:
“If Trump Fires Mueller (Or Orders His Firing).”
“There are growing indications that President Trump may be thinking about getting rid of Special Counsel Robert Mueller. Last weekend one of the President’s private lawyers would not rule out the possibility when asked. Yesterday the President’s allies started talking affirmatively about the possibility. Newt Gingrich, for example, said it was time to “rethink” the Mueller appointment, which looked increasingly bad for the President. Ann Coulter said that Trump “should fire Mueller.” And then Trump’s friend Chris Ruddy told Judy Woodruff on PBS NewsHour: “I think he’s considering perhaps terminating the special counsel. I think he’s weighing that option.”
“This seems like such a bad idea—for the nation, and for the President—that I have a hard time believing it is a live possibility. I hope it is no more than wishful thinking or encouragement on the part of the Trump allies. Perhaps it is a giant troll. As I write this there is no way to tell. Nonetheless, in the hope that this proves to be an irrelevant exercise, I sketch below what I think would happen if Trump did, in fact, decide he wanted Mueller gone.”
Goldsmith makes the same point Seth Abramson did in the tweets above: if Trump tried to fire Mueller directly himself, you could imagine a scenario where Mueller refuses to recuse himself.
“In the Watergate context President Nixon never sought to alter or circumvent the relevant regulations, and thus they remained in force and binding. But what if Trump issued a directive that fires Mueller and abrogates or ignores the Special Counsel regulations, including the authority to appoint and terminate, and the limiting criteria for termination? There are good constitutional arguments in support of this possibility. There are also countervailing arguments grounded in the principle that only the agency head that appoints the officer, and not the President, can remove the officer. This principle is reflected in the regulation itself, and is consistent with Nixon’s approach to the Special Prosecutor in Watergate. How these arguments will play out is beyond my scope at the moment, and depends on part on the statute, if any, pursuant to which the Special Counsel regulations were promulgated. I will leave it to others to sort that out, but raise this final question: If Trump goes tries to blow through the regulation and fire Mueller himself, would DOJ or Mueller accept the termination or instead challenge and litigate the purported removal? That litigation would be … interesting. ”
“That would leave Trump to try to win the right to fire Mueller in court. You can see why Goldsmith says this would be a bad idea for Trump himself. Note that the argument here would be similar to the one he has tried to make-and repeatedly failed-with the Muslim ban: I’m the President, so, believe me, I can do it.”
As Goldsmith says, this scenario is not very likely-if Trump did try to fire Mueller himself it would likely lead to mass resignations.
More likely is he’d order Rosenstein to fire Mueller.
“At least two factors lead me to think Rosenstein will resign: (1) He has already seen his reputation soiled and his judgment questioned by the manner in which the President used his memorandum as a pretext for firing Comey; and (2) He appointed Mueller to great bipartisan acclaim, and he presumably did due diligence and convinced himself that Mueller was fit to serve. Unless Trump comes up with a clinching reason for firing Mueller that is now hard to fathom, it is hard to see how Rosenstein carries out the the order. He will resign. ”
Agreed. Note that Mueller has also said that if Mueller’s investigation should touch on Rosenstein himself, he would certainly recuse himself. I think it’s very likely that Rosenstein won’t do the deed. And Sessions probably would be willing to, but realize how much trouble this would get him in. He’s already got one potential obstruction charge, does he really want to go for two?
Again, as I’ve noted more than once, only Nixon avoided jail. Maybe you can’t send Trump to jail but you certainly can send Sessions there-or Jared Kushner, or Reince Priebus for that matter.
“Second, what happens as Trump moves down the line of succession? Newly confirmed Associate Attorney General Rachel Brand would be next, and then (I think) would come acting AAG for the National Security Division Dana Boente, who is not confirmed for that job but who has been Senate-confirmed as a U.S. Attorney. What a spot these two would be in! Would they carry out the President’s order, or resign? It might seem obvious that they would resign because they would not want to carry out or associate themselves with what Rosenstein would have thought, by hypothesis, was a bad faith or at least unacceptable order by the President. I think this is what would happen. But at some point down the chain of command a countervailing principle, call it the Bork principle, arises: stability in the Justice Department and in law enforcement more generally.”
But what it comes down to in the end is Congress. Goldsmith:
“Third, what does Congress do? That is obviously the really important question. There is no doubt that firing Mueller would cause a backlash in Congress. The question is how much of one, and specifically, would it be enough to cause Republican leadership to intervene strongly with the President, and ultimately with impeachment? The answer depends on the reasons Trump gives for firing Mueller, the manner in which he does it, the precise reaction in DOJ, and what the nation’s reaction is. If Congress does not check the President, that leaves only the midterm or presidential elections, or possibly a 25th Amendment solution, as ways to stand up to the President. That may seem a depressing conclusion. But I predict it would not come to that. If the crazy scenario that got me to this point in the hypothetical decision chain materializes, Congress would rise up quickly to stop the President, and the pressure on the cabinet would be enormous as well. If I am naive in thinking this, then we are indeed in trouble.”
Indeed. This would be such a bad move for Trump you can’t imagine him taking it. Then you realize that the worst move imaginable is usually Trump’s chosen move.
P.S. As we saw in my poll out last week, the long awaited poll results are in, and right now I’m just 11 points down vs. Peter King (GOP-NY-District 2). And the voters don’t even know who I am yet.
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