Questions over whether Donald Trump will fire special counsel Robert Mueller have crescendoed this week, with the US president telling reporters yesterday (April 9) that “many people have said, ‘You should fire him.'” White House press secretary Sarah Sanders amplified them still in a press conference today, saying that Trump “certainly believes he has the power to do so.”
How exactly would that process work? We’ve laid out the three options open to Trump, with the help of Paul Rosenzweig, a former federal prosecutor and senior fellow at the conservative R Street Institute think tank, plus analysis by Harvard law professor Jack Goldsmith and by former acting solicitor general Neal Katyal. Of course, in nearly every case, the political consequences would be disastrous—even senior Republicans are predicting serious blowback if Trump tries to fire Mueller.
Sounds very simple, but this would be “extra-legal,” Rosenzweig says. The rules governing (pdf) the employment of a special counsel—put in place in 1999—say the special counsel can be “removed from office only by the personal action of the attorney general.” Since attorney general Jeff Sessions has recused himself from the Russia probe, that would have to be deputy attorney general Rod Rosenstein. So, under current rules, Trump can’t legally fire Mueller without going through Rosenstein.
Sanders’ statement suggests we can’t rule out Trump brushing the rules aside and trying to do this anyway. That leaves it up to Mueller to decide how to respond—since he would have “an argument for saying this letter doesn’t have legal effect,” Rosenzweig says.
“You can imagine a world in which he says, ‘Sorry, that’s not effective—I’m just going to keep going until you fire me the right way.’ Then what would Trump do?” Rosenzweig asks. “This could go a little crazy. It surely would not be the right thing to do.”
The most logical thing to do would be to tell Rosenstein to fire the special counsel. Let’s imagine, just for the moment, that Rosenstein agrees to do it. How would that go down?
Step 1: Find cause for firing Mueller
The special counsel can only legally be sacked for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” Rosenstein would have to find some kind of basis to do so, perhaps by digging up a Department of Justice (DoJ) regulation someone on the probe had violated.
Step 2: Work out what to do with the probe
If a compliant Rosenstein found plausible reason to fire Mueller, and Mueller agreed to go quietly without challenging that reason, Trump and Rosenstein would still be left with an ongoing existing investigation into Russian election meddling. Rosenzweig sees three options for how to deal with that:
Choice 1: Shut down the whole Russia probe
The argument for this would presumably be that Mueller’s team hasn’t found enough evidence and are wasting resources, Rosenzweig says. Or, as Trump put it yesterday, that Mueller’s team have “found nothing.” That’s a tricky case to make, since they’ve already racked up a conviction and several guilty pleas.
Choice 2: Appoint a new special counsel
This is what happened when Nixon fired special prosecutor Archibald Cox in the Watergate investigation. But the uproar was so great that the move backfired—Nixon ultimately had to allow his acting attorney general to appoint Leon Jaworski, who kept the probe rolling on. “We know that change is disruptive but not permanently disruptive,” Rosenzweig says. “The Watergate investigation got back on track and just kept chugging along.”
Choice 3: Break up the investigation and parcel it out to regional US attorneys
Aspects of the Russia probe have taken place in various jurisdictions, with the indictment against former campaign chair Paul Manafort and his number two Rick Gates filed in Virginia, and a raid of Trump’s private lawyer Michael Cohen being handed out to the Southern District of New York. Under this third option, Rosenstein would break up the investigation and give different US attorneys control of various parts, Rosenzweig says. “The main damage there would be duplication…centralization brings with it coordination and efficiency, and also a group mindset,” he says. This could be further complicated by the fact that several US attorneys are Trump appointees—the US attorney for the Southern District Geoffrey Berman has already recused himself from the investigation into Cohen.
What if Rosenstein refuses to fire Mueller?
Those who know Rod Rosenstein say he’d rather lose his job than fire the special counsel. If Trump ordered him to fire Mueller, he might resign or force Trump to fire him (Trump reportedly mulled firing Rosenstein anyway, after he authorized an FBI raid of Trump’s personal lawyer). The next person in the DoJ’s chain of command would then become the gatekeeper between Trump and Mueller.
That person is solicitor general Noel J. Francisco, a onetime clerk (paywall) to former Supreme Court justice Antonin Scalia. Francisco, Rosenzweig says, is “to the extent that I know him…a person of the rule of law—I would expect him not to fire Mueller unless there is good cause to do so.”
Should Francisco also resign or be fired rather than fire Mueller, the decision would keep passing down the DoJ’s chain of command until Trump could find a Senate-confirmed official to do it. (The chain of command is lengthy, containing various assistant attorneys general and 96 US attorneys, though Trump is allowed to change the order as long as the person in place is Senate-confirmed.)
Whoever fired Mueller would be left with an open investigation on their hands, and with Choices 1 to 3 above.
If Trump is determined to fire Mueller but also hopes to avoid the above Saturday-Night-Massacre-on-steroids, he could issue an executive order repealing the 1999 rules governing special counsels. After doing that, he theoretically could return to Option 1 and send Mueller a direct letter telling him he’s fired.
Harvard’s Jack Goldsmith thinks this option is a possibility but that “it would be enormously controversial, legally and politically.” It also probably doesn’t avoid the above mass departures: “[It] would probably result in resignations by the deputy attorney general, so it doesn’t really get him into a different place,” Rosenzweig says.
Given reports that White House counsel Don McGahn threatened to resign (paywall) when Trump tried to fire Mueller in the past, all three scenarios would likely end up with serious casualties and significant political damage to the president himself.