EghtesadOnline: President Donald Trump’s interview with the New York Times on Wednesday has stirred speculation he may consider firing Special Counsel Robert Mueller for investigating Trump’s business dealings as part of the Russia probe.
But, according to Bloomberg, Trump can’t fire Mueller directly, according to the law that authorizes Mueller’s probe. If he tried, he could set off a chain-reaction that would throw the Justice Department into upheaval.
Only the person acting as attorney general, currently Rod Rosenstein on matters related to the probe, can fire Mueller, and he’s said he won’t do it without “good cause.” So Trump would first have to purge the upper ranks of the Justice Department until he finds someone willing to follow his orders and dismiss the special counsel.
He’d almost certainly begin by dismissing Rosenstein, whose political loyalties Trump questioned in the Times interview on Wednesday in which he also warned Mueller against broadening his investigation. Such a scenario would parallel President Richard Nixon’s 1973 “Saturday Night Massacre,” when Nixon forced out the top two officials in the Justice Department in order to oust the Watergate special counsel.
“I don’t think that’s politically survivable, and it’s not clear how much collateral damage he has to do to in order to put himself into a position to have somebody fire Mueller,” said Senator Sheldon Whitehouse, a Democrat from Rhode Island.
Mueller’s investigation has expanded to examine a broad range of transactions involving the president’s businesses, including dealings by his son-in-law, Jared Kushner, and Commerce Secretary Wilbur Ross, a person familiar with the probe told Bloomberg News. Trump told the Times that if Mueller examined his family’s finances beyond any relationship with Russia he’d consider it "a violation."
“There is no possible way anybody at the White House could be seriously thinking about firing Mueller,” said Senate Bob Corker of Tennessee, a Republican. “I don’t even want to comment on that because that’s so far out of bounds it couldn’t possibly be a serious discussion.”
Trump has indicated he would try to undercut Mueller’s credibility. In the New York Times interview, Trump said Mueller has “many other conflicts that I haven’t said, but I will at some point.”
Separately, the Washington Post reported Thursday night that Trump’s legal team is exploring ways to question Mueller by building a case that he has conflicts of interest in overseeing the investigation. The Post also cited one unidentified person familiar with the effort as saying that Trump has asked his advisers about his authority to grant pardons to aides, family members or even himself.
A conflict of interest is one of the grounds that an attorney general can cite to remove a special counsel under Justice Department regulations, according to the Post.
A Congressional Research Service report lays out how a special prosecutor can be removed.
“To comply with the regulations, the Attorney General himself must remove the special counsel, not the President or a surrogate (unless, as noted previously in this report, the Attorney General has recused himself in the matter under investigation),” the agency concluded from its legal research.
Trump’s spokeswoman, Sarah Huckabee Sanders, when asked on Thursday if Trump would try to remove Mueller, said that “the president has no intention to do so at this time.”
But Trump does possess authority to fire Rosenstein for any reason, including refusal to remove Mueller from the post. If Trump did so, the decision would then fall to Associate Attorney General Rachel Brand, the third-ranking official in the Justice Department.
That’s what happened in 1973, when then-Solicitor General Robert Bork became the acting attorney general and fired the special counsel after the department’s top two officials quit rather than carry out Nixon’s order.
Brand is a conservative who served in the department under President George W. Bush and doesn’t have a background in criminal prosecutions. If Trump fired Rosenstein, Brand might resign because she and Rosenstein were nominated together, have a close working relationship and went through their confirmation hearings as a team.
Dana Boente, the acting assistant attorney general for national security, would be next in line if Trump also removed Brand. Boente has carried out controversial Trump orders before; in January, when Acting Attorney General Sally Yates refused to defend the president’s travel ban against predominantly Muslim nations, Trump replaced her with Boente, who defended the ban.
To be sure, there’s plenty of reason to believe Trump will not actually carry out his implicit threat against Mueller. For one, there is not yet indication that the special counsel is probing Trump Organization businesses outside of its connections to Russia or Russian citizens.
And while Trump allies have floated the idea of firing Mueller before, Sanders said he wasn’t planning to do so.
Still, Trump’s other precedent-shattering decisions have underscored that he doesn’t feel bound by Washington’s traditions, or a fear of the political ramifications.
He defended his dismissal of former FBI Director James Comey in his interview Tuesday with the Times, saying that while he agreed it had caused him a political headache, it was “a great thing for the American people.”
The president’s attack on his own attorney general in the same interview also reinforced notions that he is agitated by the Russia investigation.
Trump said Sessions’ decision to recuse himself from overseeing the Russia investigation after failing to disclose contacts with the Russian ambassador to the U.S. during his confirmation hearing was "very unfair to the president." And he indicated that had he known Sessions would give up control of the Russia probe, he never would have appointed him to the job.
“Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job and I would have picked somebody else,” Trump said.
Across town, the Trump interview and the larger controversy over the Russia investigation was palpable in a Senate Judiciary Committee hearing during which the panel unanimously advanced Comey’s replacement, Christopher Wray.
“Now what happens next?” said Senator Richard Durbin, an Illinois Democrat. “Will the president move again to try and dismiss Mr. Mueller, the special counsel? Will he do his best to try and end the investigation of the FBI? Will Attorney General Sessions be complicit if he moves in that direction?
“We don’t know the answers to those questions but I would tell you that we’re on the footsteps, doorstep I should say, of a constitutional crisis in this country."