Can Donald Trump fire Robert Mueller? And how would it work?

Robert Mueller's appointment as special counsel to lead the Russia probe in May caught President Donald Trump by surp...

Posted: Dec 19, 2017 11:50 AM
Updated: Dec 19, 2017 11:50 AM

Robert Mueller's appointment as special counsel to lead the Russia probe in May caught President Donald Trump by surprise. Seven months later, the President's defenders have gone into overdrive hoping to discredit the investigation as Trump insists publicly he has no plans to fire Mueller.

Trump has called the investigation a "witch hunt," his allies on Capitol Hill highlight the political contributions Mueller's team members have made to Democrats over the years, and Fox News banners muse about an anti-Trump "coup in America?" Trump transition lawyers also say Mueller's team wrongfully got a hold of tens of thousands of emails.

President Donald Trump has the ability to fire Jeff Sessions and/or Rod Rosenstein

Rosenstein has continuously offered a full-throated defense of Robert Mueller's integrity

Trump, his lawyers, his Cabinet, and White House staff all still maintain that Mueller isn't on the chopping block even as his investigation reaches members of the President's inner circle.

But what's to stop the President from handing Mueller a pink slip if he changes his mind?

Can Trump fire Mueller?

The answer isn't straightforward.

Under the special counsel regulations, Mueller may be "disciplined or removed from office only by the personal action of the attorney general."

Attorney General Jeff Sessions has recused himself from all matters related to the 2016 presidential campaigns, so the power to fire Mueller falls to Deputy Attorney General Rod Rosenstein.

But Rosenstein has continuously offered a full-throated defense of Mueller's integrity, telling the House Judiciary Committee just last week that he's seen no "good cause to fire Mueller."

Trump does have the ability to fire Sessions and/or Rosenstein -- as a members of the executive branch -- in which case Associate Attorney General Rachel Brand would elevate to acting attorney general.

"The President is not considering changes to the Department of Justice leadership," Raj Shah, principal deputy White House press secretary, told The Washington Post Monday.

But former acting solicitor general Neal Katyal, who helped draft the special counsel regulations in the 1990s, has also suggested that the rules don't "foreclose the possibility of political interference in the investigation."

"Our Constitution gives the President the full prosecution power in Article II; accordingly, any federal prosecutor works ultimately for the President," Katyal said. "The President, therefore, would have to direct Rosenstein to fire Mueller -- or, somewhat more extravagantly, Trump could order the special-counsel regulations repealed and then fire Mueller himself."

When President Richard Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, the special prosecutor investigating Watergate, it proved to be a turning point in the investigation, leading to the infamous "Saturday Night Massacre."

Richardson refused and resigned in protest, leading Nixon to order then-Deputy Attorney General William Ruckelshaus to fire Cox. But Ruckelshaus also refused and resigned, and eventually then-solicitor general Robert Bork fired Cox.

Is Trump worse off if he tries?

Harvard Law School Professor Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel during George W. Bush's administration, has suggested the President will only come under further scrutiny if he tries to fire Mueller.

"I don't see how firing Mueller gives Trump relief from the investigation. More likely the opposite, since it would call Trump into greater suspicion. Just as it got worse for him after he fired (former FBI Director James) Comey, it would get yet worse for him if he fired Mueller," Goldsmith tweeted.

"(T)he overall investigation has already yielded fruit and there is a clear justification for it to continue," he added.

Just as the FBI's counterintelligence investigation had been looking into contacts between Russian operatives and individuals associated with the Trump campaign prior to Mueller's appointment in May -- the FBI's probe would not necessarily shut down even if Mueller were out of the picture.

"FBI Director (Christopher) Wray would continue to investigate until ordered not to," Goldsmith said.

What's at stake if he does it anyway?

The number two Republican in the Senate has said it would be a "mistake" for Trump to fire Mueller and Democrats would undoubtedly go ballistic if he tried.

Yet the legislative proposals floated over the summer to protect the special counsel have, thus far, stalled.

And even if someone tried to file a lawsuit in federal court to stop the President -- it's difficult to envision a realistic scenario where a challenger with adequate standing would have a legal leg to stand on.

As the head of the executive branch, the President is ultimately in charge of law enforcement.

"The President under our Constitution has the prosecution power. So prosecutors serve as an extension of the Presidency," Katyal has said.

But the very idea that Trump might try to fire or order the firing of the prosecutor -- who now charged the President's former campaign aides with federal crimes and secured a cooperation deal with the President's former national security adviser -- strikes some legal experts as an illustration of the inherent flaw in our constitutional design.

Trump is "a stress test for this particular constitutional problem," Harvard Law School Professor Noah R. Feldman told CNN.

Mississippi Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 118587

Reported Deaths: 3310
CountyConfirmedDeaths
Hinds8050179
DeSoto728580
Harrison549185
Jackson480088
Rankin404686
Madison386194
Lee366582
Forrest311878
Jones296684
Washington2627100
Lafayette255043
Lauderdale2546135
Lamar231940
Oktibbeha204855
Bolivar203979
Neshoba1868111
Lowndes181962
Panola172040
Leflore170688
Sunflower164349
Warren156156
Monroe153873
Pontotoc150620
Marshall148430
Lincoln143359
Pike140656
Copiah139336
Scott127029
Coahoma125837
Union125825
Yazoo123434
Simpson123149
Grenada122939
Tate121039
Itawamba117226
Leake116342
Pearl River116360
Holmes115060
Adams109445
Prentiss109220
Alcorn104512
Wayne102722
George101719
Covington98829
Marion95943
Tippah94924
Newton87227
Hancock86828
Chickasaw86727
Tallahatchie85526
Winston85221
Tishomingo82741
Attala80527
Clarke77053
Clay71022
Jasper69617
Walthall64427
Calhoun63313
Noxubee60217
Smith60216
Yalobusha56416
Montgomery55823
Lawrence54414
Claiborne53916
Tunica53717
Perry52423
Carroll50312
Stone49114
Greene48118
Humphreys45117
Amite42813
Quitman4236
Jefferson Davis42112
Webster37813
Benton36710
Wilkinson34221
Kemper33315
Sharkey28715
Jefferson27910
Franklin2513
Choctaw2096
Issaquena1074
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Alabama Coronavirus Cases

Confirmed Cases: 161537

Reported Deaths: 2718
CountyConfirmedDeaths
Jefferson23769383
Mobile17039318
Tuscaloosa10539141
Montgomery10435199
Madison946798
Shelby756365
Baldwin674369
Lee662465
Calhoun468962
Marshall445251
Etowah436552
Morgan426335
Houston421234
DeKalb351229
Elmore326558
St. Clair307042
Limestone295131
Walker285593
Talladega273937
Cullman260025
Lauderdale237143
Jackson221917
Autauga210331
Colbert208232
Franklin207732
Blount198825
Russell19763
Chilton190932
Dallas188127
Coffee182611
Dale180852
Covington176729
Escambia175331
Clarke138017
Chambers137047
Pike135514
Tallapoosa135387
Marion110331
Barbour10459
Marengo103522
Butler101541
Winston94313
Geneva9357
Lawrence87733
Pickens87418
Bibb85615
Randolph84316
Hale78030
Cherokee76114
Clay75812
Washington75412
Henry7286
Lowndes71728
Monroe66010
Bullock65017
Crenshaw61130
Perry5966
Fayette59413
Cleburne5779
Wilcox57112
Conecuh56513
Macon54120
Lamar5165
Sumter47721
Choctaw39412
Greene34616
Coosa2143
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