Trump’s options regarding Mueller

US President Donald Trump has admitted that he might fire Robert Mueller, the special counsel appointed to probe into Russia’s interference on the US 2016 elections.

Can the president fire the special counsel and what happens when he does?

Background

Special counsel, special prosecutors & American Presidents

It should be noted that a special counsel and special prosecutors are inherently different. Former US Presidents have faced special prosecutors. One of the most infamous chapters of American history occurred when then President Richard Nixon ordered the firing of Archibald Cox in 1973. He was the special prosecutor probing the Watergate scandal. This ultimately became one of the main developments that ultimately derailed Nixon’s presidency. The firing caused a public outcry, a new prosecutor was established and Nixon stepped down. There have been other instances of special prosecutors appointed to investigate sitting presidents. Deputy Attorney General Lawrence Walsh was appointed to probe the Iran-Contra affair during President Ronald Reagan’s era in 1986. During President Bill Clinton’s term, a special prosecutor was appointed to probe the Whitewater scandal. A special counsel was also appointed during President George W Bush’s term. In December 2003, a special prosecutor was appointed to investigate who leaked the name of a CIA operative. In all previous cases, (barring Nixon), the president in question stepped aside and issued statements in support of the special prosecutor and the investigation.

Mueller & President Trump

Robert Mueller is an American lawyer and civil servant who was the sixth Director of the Federal Bureau of Investigation from 2001 to 2013. After J Edgar Hoover, he is the longest serving chief of the FBI. He was appointed by President George W. Bush and his original ten-year term was given a two-year extension by President Barack Obama. He is currently head of the Special Counsel investigation of Russian interference in the 2016 United States elections.

In the past few months, the special counsel has brought charges against multiple people within the Trump campaign. Former Chairmen of the Trump presidential campaign, Paul Manafort and his former business associate Rick Gates have been indicted on 12 counts including conspiracy against the United States, conspiracy to launder money, false statements.  Gates has pleaded guilty to criminal charges brought forward by the Muller special council investigation. Over the course of the investigation, Mueller has also indicted 13 Russians.

Analysis

On April 10th, 2018, news emerged that the FBI had conducted a raid on the offices of Michael Cohen. He is Trump’s personal lawyer and has been part of his inner circle for many years. The raid took place after a referral from the special counsel. Among the documents that were seized, authorities also took papers with regards to the $130,000 payment made by Cohen to a porn star, Stormy Daniels. She had claimed to have had an affair with Trump.

For the first time, Trump admitted publicly that he could fire Mueller. "Why don't I just fire Mueller?" Trump responded Monday night to a question from a reporter. "Well, I think it's a disgrace what's going on. We'll see what happens. Many people have said you should fire him. Again, they found nothing. And in finding nothing, that's a big statement."

"He certainly believes he has the power to do so," the White House press secretary said of the President's ability to fire Mueller. "We've been advised that the President certainly has the power to make that decision."

There is a set of rules governing special counsels that was introduced in 1999. This prevents the US President from directly firing the special counsel. Here are some ways Trump could circumvent it:

1)      Trump can order Deputy Attorney General Rod Rosenstein (who appointed Mueller) to fire Robert Mueller. Some reports suggest that Rosenstein is more likely to quit than fire Mueller. Trump can also fire Rosenstein and appoint someone who will dissolve the special counsel at his behest.

2)      Trump can issue an executive order rescinding the current governing laws regarding special counsel. He can then directly fire Mueller.

3)      There is a third loophole that Trump can employ. Even though the Justice Department regulations are clear, a president, as chief executive, has the authority to fire anyone in the executive branch. Thus, Trump can argue that he has the vested authority to fire Mueller.

Some Republican lawmakers have spoken against the notion of firing Mueller. One even has described it as suicide. "I think it would be suicide for the President to fire him," Iowa Republican Sen. Chuck Grassley told CNN. "I think the less the President says about this whole thing, the better off he will be. And I think Mueller is a person of stature and respected and I respect him. Just let the thing go forward."

"I believe that Director Mueller has an important job to do, and I believe he can discharge that job in a professional and impartial sort of way," said the Senate's No. 2 Republican, John Cornyn of Texas. "So my advice to anybody would let Director Mueller do his job."

Assessment

Our assessment is that it now seems highly likely that US President Donald Trump might move to dismiss the special counsel Robert Mueller. Top lawmakers including those within the Republican party have signaled that they do not support the firing of Mueller and have issued dire warnings against the president. However, no one has provided a concrete statement on what they would do in the event of such a development. History indicates that the firing of a special prosecutor is political suicide. However, with a Republican majority, the House may not begin proceedings to impeach the US President nor make an effort to keep him accountable.

Experts note that even if the special counsel files criminal charges against the president himself, he still need not be impeached. Harry Rimm, a trial lawyer has noted that there is "a school of thought," which seems to include the Justice Department "believing that a sitting president is immune from criminal prosecution and can't be indicted while in office." "Or, if he is indicted, the indictment has no legal effect," Rimm said. "Under this approach, you can remove the president from office solely through impeachment and then indict him after any Senate conviction order to punish."

There are other implications though. This would work out to Republican disadvantage during the mid-term elections. Some experts have also begun sounding concerns that the firing of the special counsel would send a bad message about the state of American democracy and its leaders.