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What Trump Can Learn from Tricky Dick

February 20, 2018

WHAT TRUMP CAN LEARN FROM TRICKY DICK: AN OVERVIEW OF WHETHER THE PRESIDENT CAN FIRE SPECIAL COUNSEL ROBERT MUELLER

By: Robert Wild, Volume 102 Staff Member

It has been rumored over the past few months that President Donald Trump has considered firing Special Counsel Robert Mueller.[1] Those rumors were all but officially confirmed by the New York Times when it was reported that Trump ordered White House counsel Donald McGahn to instruct the Justice Department to fire Mueller in June 2017.[2] McGahn refused to issue such instructions.[3] Many have disputed the report, Trump himself calling it “fake news.”[4]

If Mueller is fired, it would not be the first time that a special investigator has been terminated.[5] On October 20, 1973, Richard Nixon orchestrated the firing of then special prosecutor Archibald Cox, who was leading the investigation into and prosecution of the Watergate scandal and related cases.[6] Given this historical context, we are left with the lingering question of whether Trump can actually fire Robert Mueller. The answer is one that is commonly given to questions posed in law school classrooms around the country: it depends. This Post will cover the legal framework that governs Donald Trump’s ability to fire Mueller.

After Attorney General Jeff Sessions recused himself from the investigation into Russia’s meddling into the 2016 Presidential elections, the investigation eventually fell to Deputy Attorney General Rod Rosenstein.[7] In May 2017, Rosenstein appointed Robert Mueller to head the investigation pursuant to 28 C.F.R. § 600.1–600.10, a set of Department of Justice regulations.[8] Rosenstein had the power to appoint Mueller because he is considered the Acting Attorney General for the purposes of the Russia investigation.[9] These regulations set forth that Mueller shall “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.”[10] The regulations further lay the grounds upon which Special Counsel Mueller may be fired:

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.[11]

This tells us two important things. First, Donald Trump cannot directly fire Robert Mueller per the regulations. Trump would need to instruct Deputy Attorney General Rod Rosenstein to carry out the firing. Second, Mueller cannot be fired simply because Trump does not like him. He may only be fired for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,” and it must be in writing, which must include “the specific reason” for the termination.[12]

As Trump cannot directly fire Mueller, the inquiry may seem to end here, but it is much more complicated. There are many ways that Trump could circumvent the regulations. The first, as was discussed above, is that Trump could order Rod Rosenstein to fire Mueller. If Rosenstein did not wish to comply, he could either resign or Trump could fire him.[13] This would be the exact same scenario that played out during the “Saturday Night Massacre” when Richard Nixon fired special prosecutor Archibald Cox.[14] After ordering Attorney General Elliot Richardson to fire Cox, Richardson resigned and after Deputy Attorney General William Ruckelshaus was asked to fire Cox, he also resigned.[15] Finally, Solicitor General Robert Bork complied with Nixon’s order.[16]

In either event, the succession of who would become the acting attorney general for purposes of the Russia investigation is outlined by 28 U.S.C. § 508.[17] The succession procedures established by the statute have the effect of letting the president order the next successor to fire the special counsel or be fired themselves until someone final complies. Hypothetically, Trump could run out of people to fire for not complying with his order to fire Mueller, at which point Trump’s own executive order that establishes succession within the Department of Justice would take over.[18] The same “massacre” could take place under Trump’s executive order until someone acquiesced.

The second way Trump could circumvent the regulations is to simply ignore them or to abolish them and fire Mueller himself. The crux of this approach would come down to the constitutionality of the regulation. To argue that Trump could ignore or abolish the special counsel regulations, one would most likely take the position “that all executive power is vested in the President; law enforcement is at the core of Executive power; there is no contrary statutory directive . . . and the Special Counsel rule is just a regulation promulgated by the Executive Branch, not a law,” so Trump is free to ignore or abolish the regulation.[19] This approach essentially posits that the regulation is an unconstitutional infringement on the removal power of the President.

An opponent to this approach would likely rely on Morrison v. Olson, where the Supreme Court upheld the Ethics in Government Act of 1978. That Act created a special court and empowered the Attorney General to recommend to that court the appointment of an “independent counsel” to investigate, and, if necessary, prosecute government officials for certain violations of federal criminal laws.[20] The Court found that the Act did not violate separation of powers.[21] Further, in U.S. v. Nixon the Supreme Court noted that the President would not be able to remove a special counsel without “extraordinary improprieties on [the part of the special counsel].”[22] There are likely to be a whole host of other constitutional arguments for and against Trump simply ignoring the regulations and raises many hard and complex issues related to Presidential powers that are outside the scope of this Post. The constitutionality of ignoring the regulations would need to be challenged to prevent Trump from sidestepping them, and it would likely be decided in front of the Supreme Court.

In sum, under the current governing regulations of special counsels, Donald Trump is not able to directly fire Robert Mueller. He can indirectly accomplish such a result by instructing the Justice Department to do so. However, it is unclear whether Trump would be able to fire Mueller directly by disregarding the regulations. To do so, Trump would need to disregard the regulations and that action would need to be upheld in court. Whether firing Mueller is a good idea is up for debate. If the demise of Richard Nixon’s presidency is any indication, the foregoing conclusion would be that it is not. It seems that Trump could learn a lot from both a legal and a political perspective from Richard Nixon’s actions in the wake of the Watergate scandal.

  1. Lukas Mikelionis, Priebus: ‘I Never Felt Trump Was Going to Fire Mueller’, Fox News (Feb. 5, 2018), http://www.foxnews.com/politics/2018/02/05/priebus-never-felt-trump-was-going-to-fire-mueller.html (discussing rumors that Donald Trump planned to fire special Counsel Robert Mueller during the summer of 2017). ↑
  2. Michael S. Schmidt & Maggie Haberman, Trump Ordered Mueller Fried, but Backed Off When White House Counsel Threatened to Quit, N.Y. Times (Jan. 25, 2018), https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counsel-russia.html?mtrref=undefined. But see Kailani Koenig, Reince Priebus Disputes Report That Trump Tried to Fire Robert Mueller, NBC News (Feb. 4, 2018, 10:37 AM), https://www.nbcnews.com/politics/white-house/reince-priebus-disputes-report-trump-tried-fire-robert-mueller-n844516 (disputing that Trump ever wanted to fire Mueller). ↑
  3. Schmidt & Haberman, supra note 2. ↑
  4. Schmidt & Haberman, supra note 2. ↑
  5. Carroll Kilpartick, Nixon Forces Firing of Cox; Richard, Ruckelshaus Quit: President Abolishes Prosecutor’s Office; FBI Seals Records, Wash. Post, Oct. 21, 1973, at A01. ↑
  6. Id. ↑
  7. Rebecca R. Ruiz & Mark Landler, Robert Mueller, Former F.B.I. Director, Is Named Special Counsel for Russia Investigation, N.Y. Times (May 17, 2017), https://www.nytimes.com/2017/05/17/us/politics/robert-mueller-special-counsel-russia-investigation.html. ↑
  8. Id.; see also 28 C.F.R. § 600 (2001) (creating the ability for the attorney general to hire a special counsel). ↑
  9. Rod Rosenstein’s Letter Appointing Mueller Special Counsel, N.Y. Times (May 17, 2017), https://www.nytimes.com/interactive/2017/05/17/us/politics/document-Robert-Mueller-Special-Counsel-Russia.html?_r=1 (“By virtue of the authority vested in me [Rod Rosenstein] as Acting Attorney General . . .”). ↑
  10. 28 C.F.R. § 600.7(a) (2001). ↑
  11. 28 C.F.R. § 600.7(d) (2001). ↑
  12. Id. ↑
  13. Bloomberg, If Donald Trump Orders Robert Mueller Fired, Here’s What Might Happen, Fortune (Jan. 27, 2018), http://fortune.com/2018/01/27/if-donald-trump-fires-robert-mueller/. ↑
  14. Kilpartick, supra note 5. ↑
  15. Id. ↑
  16. Id. ↑
  17. If Deputy Attorney General Rod Rosenstein were to be fired, the Associate Attorney General would become the Acting Attorney General for the purposes of the Russia investigation. 28 U.S.C. § 508(b). If the Associate Attorney General were to be fired, then Attorney General Jeff Sessions “may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.” Id. ↑
  18. Exec. Order No. 13,775, 82 Fed. Reg. 10,697 (Feb. 14, 2017). ↑
  19. Jack Goldsmith, If Trump Fires Mueller (Or Orders His Firing), Lawfare (June 13, 2017, 12:17 AM), https://www.lawfareblog.com/if-trump-fires-mueller-or-orders-his-firing. ↑
  20. 487 U.S. 654, 654 (1988). ↑
  21. Id. at 693–96. ↑
  22. 418 U.S. 683, 694 n. 8 (1974). ↑
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