Once again, Washington is abuzz with rumors and innuendo concerning whether President Donald Trump will make good on his threats and fire special counsel Robert S. Mueller III as a means of derailing the investigation into Russian interference in the 2016 election. In one sense, as Vox’s Matthew Yglesias has pointed out, the media itself may be to blame for precipitating this latest crisis — by repeatedly asking Trump about the investigation, about Mueller, and about the specter of “red lines,” the crossing of which would (presumably) provoke a response.
But whoever is to blame, the reality is that the president himself seems increasingly to be contemplating such a move — even as the chairman of the Senate Judiciary Committee, Sen. Chuck Grassley, R-Iowa, says it would be “suicide” for Trump to do so.
Legally, there is actually some debate as to whether the president can fire Mueller directly. The federal regulation governing Mueller’s appointment — 28 C.F.R. § 600.7 — provides that “the Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General.” Because of the recusal of Attorney General Jeff Sessions, the acting attorney general for purposes of removing Mueller is Deputy Attorney General Rod Rosenstein. And the Supreme Court has suggested, as far back as 1839, that the power to remove an officer is incident to the power to appoint him — implying that the president can’t directly remove someone appointed by another officer.
Scholars have argued that the president, as chief executive, can simply rescind the underlying regulation, and thereby fire Mueller indirectly by eliminating the basis for his appointment.
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On the flip side, some scholars have argued that the president, as chief executive, can simply rescind the underlying regulation, and thereby fire Mueller indirectly by eliminating the basis for his appointment. This reasoning may explain Tuesday’s statement by White House Press Secretary Sarah Huckabee Sanders that the president “believes he has the power” to fire Mueller, and that “we’ve been advised that the president certainly has the power to make that decision.”
Ultimately, if the president does decide to force the issue, the uncertainty over who’s right on this point may lead him to pursue other options. First and foremost, he can order Rosenstein to fire Mueller, and, if Rosenstein refuses, fire him — since Rosenstein serves at the president’s pleasure. Under the Department of Justice’s own succession statute, such a move would leave the solicitor general, Noel Francisco, in charge of supervising the Mueller investigation. And the president could then order Francisco to fire Mueller (and sack him, as well, if he refuses).
If this sounds like a repeat of the Saturday Night Massacre — in which Nixon ran through the Justice Department until he found someone who would fire Special Prosecutor Archibald Cox — it would be.
If this sounds like a repeat of the Saturday Night Massacre — in which President Richard Nixon ran through the Justice Department until he found someone who would fire Special Prosecutor Archibald Cox — it would be.
The president could also try to invoke a statute that didn’t exist during Watergate — the Federal Vacancies Reform Act of 1998. When that statute applies, it allows the president to name any government official who has been confirmed by the Senate (such as Trump ally EPA Administrator Scott Pruitt) or a number of senior officials from the relevant department who haven’t been confirmed, to fill vacancies on an “acting” basis — for up to 210 days.
So if the office of attorney general were vacant, the president could ostensibly name someone other than Rosenstein (or Francisco) to the post on an acting basis — and that person, in turn, could fire Mueller.
But this scenario, too, is unclear. There is some question about whether the 1998 law applies when the vacancy is created by the president — a matter that has recently come up regarding the secretary of Veterans Affairs. The language of the relevant provision does not mention vacancies caused by firing, and there are good reasons to think that Congress meant to give the president such authority only in cases in which a vacancy arose that was beyond his control. A vacancy caused by a firing certainly wouldn’t be that. Legally, then, the safest option for the president is to pull a Nixon — and to march down the Justice Department’s own order of succession until he finds someone who will fire Mueller.
But what all of this analysis fails to account for is the politics of such a development. After all, although the Saturday Night Massacre worked out in the short term for Nixon, it actually ended up backfiring. It catalyzed Congress into taking a far more active and aggressive role in the Watergate investigation, culminating in the appointment of a second special prosecutor, Leon Jaworski. And it was Jaworski’s subpoena for Nixon’s secret tapes that was the direct legal cause of the president’s downfall.
The central, unanswerable question here is whether this Congress would respond to similar effect — and whether statements like Grassley’s “suicide” claim would actually be acted upon. Otherwise, it’s more akin to drawing rhetorical lines in the sand and hoping they are honored.
The central, unanswerable question here is whether statements like Grassley’s “suicide” claim would actually be acted upon. Otherwise, it’s more akin to drawing rhetorical lines in the sand.
There is, of course, an easy way to avoid all of this. Earlier on Wednesday, a bipartisan group of four senators — Cory Booker, Chris Coons, Lindsey Graham and Thom Tillis — introduced a consolidated version of separate bills they had sponsored last year, which would protect Mueller against being fired without cause. The bills are modest; all that they provide for is judicial review of any effort to remove Mueller. This would hopefully ensure that he’s fired for appropriate reasons, rather than to derail a legitimate investigation into Russian interference.
But if Congress is really serious about ensuring that the president doesn’t resort to any of the options described above, there’s an easy way for it to demonstrate its sincerity: Pass this bill.
Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law, and national security law. Steve is co-editor-in-chief of the Just Security blog (@just_security) and co-host of the National Security Law Podcast (@nslpodcast).
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