PROTECTING ROBERT MUELLER: ALLOWING THE SPECIAL COUNSEL TO GET TO THE TRUTH

Should President Trump fire special counsel Robert Mueller?  Should Mueller get more time to finish his investigation?  Not a day goes by now without a suggestion that Trump will soon set in motion events leading to the firing of the special counsel.  Since only Deputy Attorney General Rod Rosenstein can actually dismiss Mueller, presumably Trump would start by ordering Rosenstein to fire Mueller.  Should Rosenstein refuse, Trump would fire Rosenstein and replace him with someone who would fire Mueller, raising the specter of the 1973 Saturday Night Massacre. Richard Nixon had to dismiss both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus before finding someone in the Justice Department – Solicitor General Robert Bork -- who would carry out his order to fire special prosecutor Archibald Cox.  The Saturday Night Massacre, of course, ultimately led to appointment of another special prosecutor, Leon Jaworski, and paved the way for Nixon’s resignation in the face of certain impeachment.

Credible news reports indicate Trump ordered Mueller’s firing in June 2017 and tried again in December 2017.  The first time, Trump backed off because White House counsel Don McGahn threatened resignation if Trump went through with the dismissal.  In December, Trump discovered reports Mueller had subpoenaed some of his bank records weren’t

true and decided not to order Mueller’s dismissal.  These false starts don’t mean Trump won’t succeed in getting the special counsel fired.  Despite claims by Republicans, like departing House Speaker Paul Ryan, that they “don’t think” Trump will have Mueller fired, lots of people in Washington now believe it has become a matter of when, not if.

CONGRESS TO THE RESCUE

So what could stop Trump from successfully having Mueller axed, halting the Russia investigation?  One easy answer in theory that’s very difficult practically lies in congressional action.  Later this month, the Senate Judiciary Committee will vote on a bill sponsored by two Republicans – Thom Tillis of North Carolina and South Carolina’s Lindsey Graham – and two Democrats -- Chris Coons of Delaware and Cory Booker of New Jersey.  The legislation, identical to a measure introduced in the House by Pennsylvania Republican Charlie Dent and Vermont Democrat Peter Welch, would set specific standards for firing a special counsel and put review of such a firing in the hands of a three-judge federal panel.  Proposing, and maybe passing the bill, is easy.  Then the hard part starts.

First, as Republican Senator Susan Collins of Maine said recently, Trump would never sign such legislation.  It seems certain, in fact, he would veto that kind of measure.  Congress rarely overrides Presidential vetoes, especially ones of controversial bills like this one.  Veto overrides require a two-thirds vote in both chambers.  Given the current makeup of the House, assuming all 192 Democrats vote to override, passing the bill over Trump’s veto would require 99 Republican votes to get to the necessary two-thirds, 291 votes in the 435 member lower chamber.  In the Senate, assuming all 47 Democrats and the two Independents who caucus with them – Bernie Sanders of Vermont and Angus King of Maine, support an override, it won’t happen without 18 Republican votes to get to 67 for the two-thirds requirement.

Those numbers don’t even take into consideration the potential constitutional problems with legislation protecting Mueller.  Such a measure would thrust Congress into an executive branch personnel matter that might implicate separation of powers concerns.  Some constitutional scholars think impeachment represents the only way Congress can override such a Presidential action.  Senator Collins, in fact, agreed Congress would “send a message” if it passed such a law, but acknowledged it might not stand if challenged in the courts.

OTHER WAYS

Other things are now in the picture that potentially can keep the investigation going, even if Trump fires Mueller.  If Trump starts with firing Rosenstein, the Senate could require a promise from a new Trump appointee for Deputy Attorney General that he or she would have to appoint a new special counsel (AG Jeff Sessions has recused himself from Russia-related matters).

The recent FBI raid on the offices and residences of Trump lawyer Michael Cohen offers another vehicle for keeping the investigation

going, even if Trump succeeds in having Mueller sacked.  The United States Attorney for the Southern District of New York, Geoffrey Berman, initiated the Cohen raid after a referral from the special counsel’s office.  That part of the investigation, therefore, will continue, Mueller or no Mueller.  It’s been suggested this investigation imperils Trump more than the Mueller probe because it could lead to review of Trump’s real estate and other business practices going back years, not just his possible collusion with the Russians in interfering in the 2016 election.  

Finally, if all else fails, some of Trump’s alleged transgressions related to alleged collusion with the Russians, possible obstruction of justice, and money-related crimes might also have violated state laws.  Prosecutors in New York and other jurisdictions could pick up the investigation, though they might have to limit their probe in ways federal prosecutors do not.

Trump may well fire Mueller. As Trump likes to say, “We’ll have to see what happens.”  One thing that’s not happening is a complete shutdown of the investigation into Trump’s actions.  That will continue.