Why Trump Can’t Fire Mueller EasilyBy and
President Donald Trump has mused publicly about firing Robert Mueller, whose investigation of Russian meddling in the 2016 campaign has spilled over to Trump’s associates and sparked a separate probe of the president’s longtime personal lawyer. Trump tried to oust Mueller at least once, according to news reports, fueling legal debates over whether he really has that authority. What’s clear is that while Mueller enjoys a degree of independence and autonomy as special counsel, he isn’t untouchable.
1. Could Trump fire Mueller?
White House press secretary Sarah Huckabee Sanders raised eyebrows on April 10 by saying "we’ve been advised" that Trump "has the power to make that decision." Trump certainly could declare Mueller, or anyone else in the executive branch, fired and then see what happens. But special counsels -- lawyers named by the Justice Department to take over sensitive investigations -- answer to the Justice official who appoints them, according to the 1999 rules that guide the role. Usually that’s the attorney general. In Mueller’s case, it’s the deputy attorney general, Rod Rosenstein, because Attorney General Jeff Sessions, having advised and supported Trump’s 2016 campaign, recused himself from overseeing the inquiry.
2. So only Rosenstein can fire Mueller?
That’s the most literal reading of the special-counsel rules, which also say Mueller could be fired only upon a finding of “misconduct, dereliction of duty, incapacity, conflict of interest" or "other good cause.” As long as Sessions is attorney general, and recused from the probe, that judgment is up to Rosenstein, who has said as recently as Dec. 13 that he sees no such reason to dismiss Mueller. Hypothetically at least, Trump could order Rosenstein to fire Mueller, then fire Rosenstein if he refuses, and then repeat the order to the official who steps in for Rosenstein.
3. Who would that be?
For most of Trump’s presidency the answer was Rachel Brand, the associate attorney general. But she resigned in February to take the top legal job at Walmart; she denied a report that she departed in part because she didn’t want to be forced to oversee the Russia probe. Until a new associate attorney general is named and confirmed by the Senate, the next in line to fill Rosenstein’s role is the solicitor general, Noel J. Francisco.
4. What if he, too, declined to dismiss Mueller?
Trump could fire him as well and repeat the process through the line of succession until someone does as he says. This is largely what happened in the "Saturday Night Massacre" of 1973, when President Richard Nixon ordered three Justice Department officials to fire the Watergate special prosecutor until one finally agreed.
5. Does Trump have any other options?
Other than firing Rosenstein, Trump could fire Sessions, with the expectation that Sessions’s successor would seize control of the case from Rosenstein. Or Trump could order the repeal of the special-counsel regulations, in hopes that would clear a legal path to fire Mueller himself. There also are ways Trump could defang the Russia probe short of getting Mueller fired. For instance, under the rules, Rosenstein -- or his successor in overseeing Mueller’s work -- could reel in the investigation by finding one of its strategies or techniques "so inappropriate or unwarranted under established departmental practices that it should not be pursued."
6. Would firing Mueller end the Russia investigation?
Not necessarily. The investigation predated Mueller’s appointment as special counsel and already has some prosecutions underway.
7. Is anyone trying to protect Mueller?
That effort has picked up of late. In the U.S. Senate, two Republicans and two Democrats have consolidated their separate bills to protect Mueller into a single piece of legislation that would, according to the sponsors, ensure that the special counsel can only be fired for “good cause” and give the person in that role the ability to seek an expedited judicial review of any dismissal.
8. What would happen if Mueller were fired?
He could try to challenge the grounds for his dismissal in court. Beyond that, much of the fallout would depend on Trump’s fellow Republicans in Congress, who hold majorities in the House and the Senate. Democrats could be expected to express their outrage by offering proposals to reinstate Mueller and to remove Trump as president, on grounds that he had obstructed justice. But Democrats couldn’t accomplish that on their own. Republican Senator Lindsey Graham warned in January that if Trump tries to fire Mueller, "it would be the end of his presidency." More recently, Republican senators John Cornyn and Chuck Grassley have sounded similar cautions. But some other Republicans have been far more critical of the Russia probe -- which they say was tainted early on by anti-Trump bias -- than they are protective of Mueller.
9. Could Trump be impeached for firing Mueller?
Since removing a president is a political process, not a legal one, that question would be up to Congress, and the political calculus may change if Democrats gain control of one or both houses in the November midterm elections. The Constitution says the president (and vice president and judges and members of the cabinet) "shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." The key phrase "high crimes and misdemeanors" has been defined by Congress through the years to include exceeding or abusing the powers of the presidency or misusing the office for improper purpose or gain.
The Reference Shelf
- QuickTake Q&As on the twists and turns of the Trump-Russia story and what to know about impeachment.
- How Trump could imperil his presidency by firing Mueller.
- Bloomberg View columnist Noah Feldman asks: What if Trump fires Mueller and Mueller says no?
- Mueller’s interest in Trump’s businesses crossed the president’s red line, Timothy L. O’Brien writes in Bloomberg View.
- The fine print on the special counsel’s powers.
- The Congressional Research Service defines independent counsels, special prosecutors and special counsels.