For those who fear that Donald Trump is about to lower the boom on special counsel Robert Mueller, take a deep breath and slowly exhale. Despite all you’ve heard from Trump himself, press secretary Sarah Huckabee Sanders, and law professor Alan Dershowitz about the commander-in-chief’s unfettered authority to discharge any member of the executive branch with impunity, Mueller isn’t going anywhere any time soon.
There are at least five reasons why Mueller and his probe are safe:
1. Trump lacks unilateral authority to remove Mueller.
The Department of Justice regulations under which Mueller was appointed preclude the president from dismissing a special counsel on his own initiative. The current regulations were adopted in 1999. They replaced the old Clinton-era “independent counsel” statute, which expired the same year.
As the present regulations clearly stipulate:
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.” [emphasis added].
2. Acting Attorney General Matthew Whitaker may lack the legal authority to remove Mueller.
Although Trump can’t fire Mueller directly, he can order the attorney general to do his bidding. According to conventional wisdom, Whitaker will be only too eager to oblige. Indeed, in the view of many of the president’s foes, that’s the reason Trump elevated Whitaker to the position of acting attorney general after he forced the resignation of Jeff Sessions, who had recused himself from overseeing the Mueller inquiry. With Sessions out of the way, Whitaker has replaced Deputy Attorney General Rod Rosenstein as Mueller’s boss.
Since Mueller’s appointment, Whitaker has been among the foremost critics of the special counsel’s work, often echoing Trump’s own unhinged rants. Before he became Sessions’ chief of staff, Whitaker was a right-wing blogger and a regular talking head on cable news. In that capacity, he not only argued that the attorney general could defund the Mueller probe, but also that the probe would devolve into a “witch hunt” if it crossed a “red line” into an examination of Trump’s finances.
Last week, the line was breached when former Trump lawyer Michael Cohen pleaded guilty to lying to Congress about the extent of his erstwhile client’s efforts during the 2016 election campaign to build a Trump Tower in Moscow.
But Trump’s plans to deploy Whitaker to ax Mueller may be dead on arrival, because Whitaker’s appointment may be unconstitutional. To date, at least half a dozen lawsuits have been filed challenging Whitaker’s installation for running afoul of the Constitution’s appointment clause (Article II, Section 2).
The clause provides that all principal officers of the United States be appointed by the president with the advice and consent of the Senate. There is little doubt that the attorney general, as a Cabinet member answerable only to the president, is a principal officer of the government and not an ordinary employee who can be hired by the president alone.
The lawsuits against Whitaker contend that he cannot lawfully discharge the duties of the attorney general because he hasn’t been confirmed by the Senate. As matters presently stand, the suits may well succeed, at least to the degree that Whitaker might try to alter pre-existing Justice Department positions in pending litigation and investigations. Firing Mueller could well persuade the courts to quash Whitaker’s appointment.
3. Whitaker may defy expectations and refuse to fire Mueller.
Despite his past statements about the Mueller investigation, it’s not a lock that Whitaker would carry out a presidential order to fire Mueller. He may not be quite the stooge and lackey many assume him to be.
On Friday, The Washington Post reported that it had reviewed “hundreds of public comments” made by Whitaker before becoming Sessions’ chief of staff. Among other discoveries, the Post found that while working as a radio and TV commentator, Whitaker sometimes took Trump to task for his “dangerous behavior,” such as failing to release his tax returns, “playing with the truth” and being “self-serving” in the way he fired former FBI Director James Comey.
Lackey or not, Whitaker thus far has taken no discernible action to rein in Mueller. Even with Whitaker looking over his shoulder, Mueller has proceeded full steam ahead in obtaining Cohen’s recent guilty plea, and he is apparently hard at work preparing new indictments against high-profile Trump loyalists Jerome Corsi and Roger Stone.
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4. Mueller can contest his firing.
Even if Whitaker follows presidential orders to fire Mueller, the special counsel can contest the firing by filing a wrongful termination case in federal court.
As ethics experts Noah Bookbinder, Norm Eisen and Caroline Fredrickson wrote in a lengthy memorandum published in December 2017, Mueller and his staff likely would have standing to argue that the special counsel was sacked without good cause if his termination is politically motivated.
What’s more, if Mueller and his colleagues go to court, they would have a ready-made template to follow in the 1973 case of Nader v. Bork. In that case, Ralph Nader persuaded a federal district court judge to declare that Robert Bork’s firing of Watergate special prosecutor Archibald Cox in the infamous “Saturday Night Massacre” violated the terms of the Justice Department regulations under which Cox was appointed.
Although the judge declined to reinstate Cox, he did so only because Cox had declined to join the lawsuit as a party. If Mueller and his staff initiate their own proceeding, that barrier would be absent.
5. Trump is deathly afraid of impeachment
The image of Trump as a strongman who hits back twice as hard as his opponents is a mirage. Beneath his bravado lurks what many prominent mental-health professionals perceive is a brittle, insecure narcissist who lives in fear of being exposed as a weak and craven con man.
For the first two years of his presidency, Trump’s narcissism went essentially unchecked. He could fire Comey, threaten to discharge Mueller, hint at pardoning supporters and himself and lie about everything from his business dealings with Russia to his efforts to obstruct the Russia probe, and get away with it all.
If Trump fires Mueller or cripples his investigation, he will face certain impeachment in the House, which the Democrats will control come January. Despite the reservations of the party leadership, the new breed of progressive Democrats who have been elected to the House will demand no less.
“I’ve been supportive of impeachment for some time now,” Representative-elect Alexandria Ocasio-Cortez, D-N.Y., told Vice News in response to Cohen’s latest guilty plea. “I think [this] just adds to the case” against Trump.
The Democratic rank and file is also ready to roll. Midterm exit polls conducted by CNN found that a staggering 77 percent of self-identified Democrats said they support impeachment.
If the House pulls the impeachment trigger, we can expect the mother of all congressional hearings. In scope and length, the hearings could far exceed the House’s investigation of Richard Nixon, which dragged on for more than nine months.
Every act of alleged collusion, every illegal emolument, every item of tax evasion, every instance of obstruction, every material lie Trump has ever uttered about the Mueller probe will be laid bare for all the world to see.
It won’t matter that the Senate, still in Republican hands, might not convict Trump of any impeachable offenses the House refers to the upper chamber. If Mueller is fired, all that will matter is exposing the fraud of the Trump presidency—and that will prove as easy as, well, shooting fish in a barrel.
The smarter course of action for Trump is to let Mueller finish his job, and to hope that in so doing, he manages to save his own skin.