Why Trump Should Stay the Course With Mueller
President Donald Trump's supporters are pushing hard for him to do something about Special Counsel Robert Mueller. The president himself and his legal team are stressing cooperation, though that position can change in a matter of hours in this administration (and may have changed if Thursday night's comments on the Justice Department are any guide).
So what if Trump fires Mueller? On a Constitutional level, any presidential effort to shut down, derail, impede, or otherwise obstruct any prosecutorial investigation is not only ethically wrong, and not only a crime, but a clear abuse of power. Presidents simply are not supposed to intervene in the process in that way, personally selecting who to prosecute and who not to prosecute. A presidential effort to shut down an investigation into his family, his campaign or administration, his business, or himself would be even worse.
To call such actions "impeachable" is way too lenient. That is, impeachment, like all prosecutions, require some discretion, and there are always going to be close calls. Trump uses his office to advertise his properties; that's unethical and in some sense an abuse of power and a violation of the Constitution, but most people wouldn't think that it alone is worth impeaching the president over, although add up several of these types of violations and the case starts getting stronger. But attempting to end an investigation into himself and his associates would absolutely demand it unless the president backed down. (And even if he did back down, the grounds for impeachment and conviction are solid).
The main reason Trump should not go down this path may sound quaint to some of his critics: because he swore an oath to "faithfully execute the Office of President of the United States" and to "preserve, protect and defend the Constitution of the United States." But there's another reason: It would surely backfire against him.
The obvious precedent is the "Saturday Night Massacre." President Richard Nixon fired Special Prosecutor Archibald Cox and dissolved his office in October 1973 after Cox obtained a court order mandating that Nixon turn over several tapes of White House conversations. Nixon instead ordered the attorney general, Elliot Richardson, to fire Cox. Richardson refused -- he had promised the Senate Judiciary Committee he would do no such thing -- and resigned. Nixon then ordered the acting attorney general who replaced Richardson to do the deed. He resigned. Finally, the next-in-line acting attorney general, Robert Bork, did what Nixon asked. 1 But Nixon was finished: the resulting firestorm led to the re-establishment of the office of the special prosecutor, and impeachment became a mainstream topic. Oh, and Nixon gave up and turned over the tapes after all. 2
Nixon remained president until August 3 but it's very likely the House would have moved much more quickly if Nixon had not surrendered in October. A full House impeachment and Senate conviction could take place in weeks if enough members of Congress believed it was urgent.
Why did Nixon do it? He surely knew the risks. But he also had a big problem. He was flat-out guilty of numerous crimes, crimes which when exposed would almost certainly result in impeachment and removal. He knew that the tapes would prove his guilt. And Cox was asking for the tapes. 4
The conditions that drove Nixon into that mistake do not apply right now. Therefore, Trump would be foolish to fire Mueller, even putting aside the ethics. Trump may well be guilty of all sorts of things which aren't clear so far. But there doesn't appear to be anything parallel to the fight over White House tapes that led to Cox's ouster. 5
Several Senate Republicans have already said Mueller should be allowed to investigate without any interference. As for those congressional Republicans who don't? Partisanship may not have been as strong in 1973 as it is now, but it still was the case that a lot of Republicans strongly stuck with Nixon and seemingly were prepared to stick with him no matter what ... until they didn't. The Saturday Night Massacre -- the firing of Special Prosecutor Cox -- was one of those instances where previously loyal Republicans turned on him
My guess is, indeed, that very, very few Hill Republicans feel any loyalty to Donald Trump at all. What they do care about is saving their own skin. During normal times, supporting their own president is a safe spot because if they all abandon him he'll likely become less popular, and a same-party unpopular president strongly tends to drag down incumbents with him, whatever they may have said or done. But firing Mueller would surely unleash a firestorm of criticism, and politicians don't like standing up to that sort of pressure. And, no, I don't think spin efforts to demonize Mueller over the last few weeks (with more no doubt coming soon) will matter very much. They will give those still willing to defend the president (if he fires Mueller) some cheap talking points, and the 25 percent or so of the voting public which consists of hard-core Republican partisans will go along, but there's nothing there to convince anyone who doesn't want to be convinced.
It matters, too, that a nascent anti-Trump caucus of Senate Republicans is already on its way to forming, reducing the chances that the party could maintain any kind of unanimity in support of Trump should he attempt any obvious abuse of power on that scale. It might also matter that the two living former Republican presidents, and most of the living former Republican nominees for president, might well speak out too.
Indeed, I suspect there's a bit of hype in all this talk, which started not long after Mueller was hired. Perhaps Trump intends to do something rash, but he hasn't, and his lawyers seem to be working hard to maintain that posture. Granted, Trump doesn't always respond to very clear incentives in the system, but maybe for once he'll actually listen to reason and not sabotage himself and his party.
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Bork had not made any promises to Congress during his confirmation hearing, and Richardson believed it was better for Bork to fire Cox than to leave the Justice Department with no one at all in place.
Nixon probably would not have been convicted in the Senate, and perhaps not even impeached by the House, given the information they had in late 1973 -- but the process was underway that would provide more than enough evidence against him.
As it was, the House Judiciary Committee began initial work on impeachment by the end of October, just days after the massacre. The committee began by studying the process, and didn't move to holding hearings until May 1974, and didn't get to consideration of articles of impeachment until July; Nixon resigned after the Judiciary Committee had voted for impeachment but before the full House of Representatives took up the question.
In October 1973 Cox was only demanding a small number of tapes, but once the principle was established that the president must turn over such evidence, the investigation was bound to reveal far more. In the event, another set of tapes obtained after another battle in August 1974 sealed Nixon's fate, while many more tapes with much more damning evidence would not be released until years later.
Nixon, after all, wasn't threatening to shut down the entire investigation; he merely wanted prosecutors to stop trying to get those tapes as they pursued the case. That he could do that was a fantasy, but it's less fantastic than Trump's presumed intention to just end the investigation altogether, just as he apparently believed he could end it by firing James Comey.
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Mike Nizza at email@example.com