Legal analyst Paul Callan addresses key questions and the political cost
White House says Trump has the right but has "no intention" to do so
Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and currently is of counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.
Newsmax CEO Christopher Ruddy created a storm of controversy when he suggested Monday that President Trump was contemplating firing the newly appointed Special Counsel Robert Mueller III, a man destined to be a festering thorn in the side of the Trump administration for months or years to come. And on Tuesday, aboard Air Force One, White House deputy press secretary Sarah Sanders addressed the idea of firing Mueller with these words: “while the President has the right to, he has no intention to do so.”
Sanders declined to say whether Trump had confidence in Mueller.
Can the President indeed fire the special counsel? The simple answer is that he most certainly can but only through the Justice Department chain of command – and the political cost would be great.
The possibility that Trump might at some point want to fire Mueller has to be viewed quite seriously. As the former host of both “The Apprentice” and “The Celebrity Apprentice,” not to mention his lengthy career as a real estate and “branding” entrepreneur, President Trump brings a special expertise to the subject of firing people. Just ask former FBI Director James Comey.
Unlike the President’s successful TV program, where ratings seemed to rise each time he fired someone, his already lackluster poll numbers might plummet if he terminates Mueller before the special counsel has completed his investigation.
Trump doesn’t seem to spend much time reading history books but now might be a good time for him to pick up a good biography of Richard Nixon before he decides to go to war with Mueller.
Giving Mueller the ax would strongly evoke memories of the famous “Saturday Night Massacre” when Richard Nixon tried to fire Archibald Cox, a special prosecutor closing in on him in the Watergate scandal. Attorney General Elliot Richardson refused to carry out Nixon’s order to fire Cox and resigned as did Richardson’s next in command, Deputy Attorney General William Ruckelshaus. Nixon then turned to the third in the chain of command at the Justice Department, Solicitor General Robert Bork, who promptly followed Nixon’s order and fired Cox.
The “massacre” resulted in an avalanche of anti-Nixon headlines and press coverage reminiscent of the sinking of the Titanic. And sink Nixon it did with articles of impeachment voted by the Judiciary Committee of The House of Representatives, followed in short order by Nixon’s resignation in disgrace.
By law, the “special counsel” is a somewhat independent employee of the Department of Justice. The department regulation pertaining to the position explicitly permits the firing of the special counsel and the termination of his investigation under certain special circumstances.
The firing requires the “personal action” of the Attorney General. The grounds for removal are limited to “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” Subsequently the attorney general is required to report to Congress regarding the termination of the special counsel and his investigation.
The intrepid attorney general or acting attorney general who agreed to follow a presidential order to fire Mueller might try to get away with reliance on the “good cause” provision of the statute given its vagueness. (Deputy Attorney General Rod Rosenstein, who appointed Mueller, testified on Capitol Hill Tuesday that the special counsel could only be fired for “good cause” and that there was no such cause in this case.)
There also might be a claim of a “conflict of interest” because of Mueller’s personal relationship through the years with Comey and possibly with many of the other potential subjects of his investigation. So far none of these claims appear to rise to the level of what lawyers and the court system would label a true conflict of interest. Lots of people have worked together and know each other in the higher echelons of government and that fact alone is not really a legitimate conflict of interest.
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A true claim of a Comey “conflict of interest” would require proof that Mueller and Comey had a longstanding personal friendship that would clearly impede the impartiality of the special counsel. The public record generated to date does not reveal a relationship of this nature between the two men. The President therefore would be on shaky grounds ordering the firing of Mueller under existing Justice Department regulations.
There is no question that as long as Mueller is investigating the possibility of the Trump campaign’s collusion with the Russians and obstruction of justice in the firing of James Comey, a black cloud of adverse publicity will hover over the Trump administration.
The real solution to this problem, if Trump’s assertions of innocence are true, is not to fire the special counsel but rather to cooperate fully with him to insure the swift completion of his investigation.