It’s clear President Trump believes he has the power to fire Robert Mueller. What’s less clear—and what might determine the fate of both men—is whether the courts would agree.
Under existing federal regulations, Mueller may be removed only by the attorney general—in this case Deputy Attorney General Rod Rosenstein, since Attorney General Jeff Sessions has recused himself—who would need to provide Mueller in writing with a “good cause” reason for his dismissal.
Were Trump to fire Mueller directly, he might claim that as head of the executive branch, he retains the right to fire subordinate appointees. But such an expansive claim of executive power, rooted in what is commonly referred to as the “unitary executive” theory, could drag the White House into a lengthy legal battle.
In 1973, President Nixon wanted to remove the independent investigator in charge of the Watergate investigation. Rather than firing Archibald Cox directly, Nixon worked through the chain of command at Justice, forcing out Attorney General Elliot Richardson and his deputy before finding someone willing to do the deed. In response to the “Saturday Night Massacre,” Congress passed the Ethics in Government Act of 1978, which established “good cause” conditions similar to the restrictions protecting Mueller. The Supreme Court upheld the now-expired law in 1988, ruling that the “good cause” restriction was a constitutional curtailment of executive power.
Trump might also simply order Rosenstein to repeal the regulations. If he refused, Trump could turn to Sessions—but it would be a “stretch of the imagination” to assert that Sessions’s involvement wouldn’t violate his recusal, said Caroline Fredrickson, director of the American Constitution Society. A repeal might also lead to drawn-out notice-and-comment proceedings—not exactly the swift resolution Trump is hoping for.
David Rivkin, a constitutional lawyer who served under Presidents Reagan and George H.W. Bush, disagreed with Fredrickson’s interpretation. “The Special Counsel regulations were adopted essentially as internal housekeeping strictures within the executive department,” he said. No formal notice-and-comment procedures occurred when they were adopted, and the notion that a repeal requires them “is just risible,” he said, arguing that Trump could fire Mueller and repeal the regulations simultaneously.
A third option for Trump would be to argue that Mueller is not actually protected by the regulations at all. In the final line of his letter appointing Mueller, Rosenstein wrote that the regulations are “applicable” to the special counsel. “What that means—‘applicable’—is up for debate,” said Josh Blackman, a law professor at South Texas College of Law Houston. “If he had written ‘pursuant’ to these regulations, it would have been clearer.”
It is possible to interpret this legal wrinkle as “just a personal promise made by Rosenstein,” agreed Louis Michael Seidman, a professor of law at Georgetown University.
Three other legal experts who spoke to National Journal disagreed. The argument is “groping at straws,” said Paul Schiff Berman, a law professor at George Washington University. “It’s hard for me to read that letter in any way other than he’s appointed pursuant to those regulations.”
Regardless of which route Trump might take, any decision to go after Mueller would likely unleash a cascade of legal battles.
First and foremost, Mueller could sue, and he would probably be able to prove two of the three requirements for legal standing: injury-in-fact (he lost his job) and causation (it happened because Trump fired him). However, because the federal regulations provide the special counsel with no specific legal recourse, he could struggle to prove the third: redressability.
Mueller might argue that his firing amounts to a constitutional violation: A dismissal without notice and comment, combined with Trump’s attacks on his integrity and honesty, deprives him of a “liberty interest” in his preferred occupation, Frederickson argued in a report coauthored with Noah Bookbinder and Norman Eisen.
But again, Rivkin urges caution: “This is not a Scooter Libby type situation where if you’re convicted of a felony you lose your license to practice law,” he said. If Mueller is fired for cause “and cause includes failure to follow DOJ regulations,” it won’t impede his ability to practice law, Rivkin said. “That’s absurd.”
If Mueller were found to have standing, the merits would be decided in federal district court. Upon appeal, the case would move to a federal appellate court, and finally to the Supreme Court.
Legal scholars generally agreed that firing Mueller would be a mistake, because the investigation would continue regardless. A firing would be “simultaneously politically insane and utterly useless,” Rivkin said.
Already-empaneled grand juries could continue to subpoena documents and witnesses, with FBI Director Christopher Wray taking the reins. “Some of the alleged crimes being investigated sort of also violate state law,” noted Berman. Mueller’s investigative team “may have turned over materials to the New York State Attorney General’s office,” he said, which “could then investigate separate from the Justice Department.”
Finally, firing Mueller might open the Trump administration up to lawsuits from third parties. Those closest to the investigation would have the best chances at proving standing—such as employees at Justice or the FBI, who may be able to challenge for declaratory or injunctive relief. Rosenstein may actually have the strongest case, given his direct involvement in Mueller’s appointment. Precedent on third-party lawsuits, however, is murky.
Something besides legal arcana could stay Trump’s hand, something far closer to his own sensitivities as a leader: the political fallout. A recent Quinnipiac University poll suggests that nearly 7 in 10 Americans—including 55 percent of Republicans—don’t believe Trump should fire Mueller. Were Trump to sack him, the courtroom drama could stretch on for years, potentially butting up against his 2020 campaign. “In really important ways, this is not a legal question,” Seidman said. “It’s a political one.”