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
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.
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.