Opinion

Opinion | Richard W. Painter

Three big obstacles to Trump firing Mueller, and why he might try it anyway

Any rational president wouldn’t even consider it. But then there’s Trump.
Lesley Becker/Globe Staff/Associated Press

There are three big reasons why any rational president in Donald Trump’s position would not even think of firing special counsel Robert Mueller in the middle of the Russia investigation.

First: It would technically be hard to do. Trump cannot directly fire Mueller, because he is not an appointee of the president. Trump could try to persuade Attorney General Jeff Sessions to fire Mueller, but this is not happening, because Sessions recused himself from the Russia investigation after being caught in untruthful testimony about Russia by former senator Al Franken. Trump could try to persuade Deputy Attorney General Rod Rosenstein, who appointed Mueller, to fire him, but Rosenstein will refuse. This leaves only one option — to fire Sessions and/or Rosenstein, and replace them with someone who will fire Mueller.

Apart from the difficulties of finding anyone willing to fire Mueller, Trump runs into serious difficulties if he goes outside the Justice Department: for example, tapping EPA administrator Scott Pruitt as acting attorney general. The Vacancies Act most likely allows the president to fill a vacancy inside an agency with only another person already inside the agency, not from another department. Appointing Pruitt as acting attorney general might not be valid, and if so, a court would strike down any official acts he takes in that office, including firing Mueller. Such an appointment from outside the Justice Department is an invitation to litigation over this issue, on top of all of the other controversy that would ensue.

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Trump could avoid this problem by finding someone inside the department to take Sessions’ or Rosenstein’s job and then fire Mueller. But because firing Mueller would likely be an obstruction of justice, it could be difficult to find a Justice Department lawyer willing to do that. Robert Bork did it for Richard Nixon in 1973 (Nixon had to fire two attorneys general on the same Saturday night before he got to Bork), and that did not go over so well for Bork (the issue was raised at his unsuccessful 1988 confirmation hearings for the Supreme Court). Given the fact that the present investigation, unlike Watergate, involves Russian espionage, and Trump has already fired FBI Director James Comey in an effort to stop the probe, the blowback for any DOJ lawyer who fires Mueller could be much worse than what Bork experienced. It is not at all certain there is someone at the Department of Justice reckless enough to put at risk their career and their bar license, and perhaps their liberty, to do it.

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Second: A Mueller firing probably would be obstruction of justice. Because of the Comey firing, this would be a second strike against Trump, compounded by his Twitter feed and public statements, as well as television interviews with the Russian ambassador that make the president’s motives crystal clear. As several Republican senators have warned, a Mueller firing could mean the end of his presidency. Given the mounting evidence of obstruction of justice by the president, it could be just what prosecutors need to try and convict him. He cannot pardon himself under the Constitution, and Vice President Pence need only observe how well Gerald Ford did in the 1976 election after he pardoned Richard Nixon to realize that a pardon of a predecessor is not a good idea. Trump is already at risk of prosecution for obstruction of justice, and a Mueller firing might land him in prison.

Third: Firing Mueller won’t make the investigation go away. Congress will insist on a successor independent prosecutor, just as Congress did in 1973 when Archibald Cox was quickly succeeded by Leon Jaworski, who was at least as vigorous in going after Nixon and his aides. Mueller is a great prosecutor, but he is not the only game in town. Furthermore, a Mueller firing would likely accelerate investigations in both houses of Congress, which would demand access to all of Mueller’s records. Not to mention the New York attorney general, who likely already has a lot of those records and the power to prosecute some of the crimes being investigated, such as money laundering. And, unlike federal crimes, crimes prosecuted by the State of New York cannot be pardoned by the president. Shifting the center of gravity of this investigation to New York is a good way to land a lot of people on Riker’s Island.

But all of this does not necessarily mean that Trump won’t try to fire Mueller. He is a reckless president. He is emotional and unpredictable. He obsesses about this investigation. He detests Mueller, a symbol of what used to be right with the Republican Party before Trump destroyed it. He may fire Mueller or try to fire him. And if Trump does, we must all be ready to do our part to defend our Constitution and the Republic.

Richard W. Painter is a professor of law at the University of Minnesota. He was chief White House ethics lawyer for President George W. Bush.