President Donald Trump appears more determined than ever to fire Special Counsel Robert Mueller. From the beginning, Trump claimed that Mueller’s investigation into Russian interference in the 2016 elections was a witch hunt. He fired FBI Director James Comey last year and reportedly tried to fire Mueller last June, but was dissuaded by White House Counsel Don McGhan. Now, with his claims that the so-called Nunes memo vindicates him and shows that Mueller’s investigation is biased, Trump may boast that he has a legitimate basis to fire Mueller.
Nevertheless, the firing process is cumbersome. Trump first would have to order Deputy Attorney General Rod Rosenstein to do the dirty work, because Rosenstein appointed Mueller under special Department of Justice regulations and is authorized to remove him only for “misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause.” It is likely that given his consistent support of Mueller’s investigation, Rosenstein would refuse to follow Trump’s order, and, as with the famous Saturday Night Massacre where Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus refused to follow President Richard Nixon’s order to fire special counsel Archibald Cox, Trump would fire Rosenstein.
Trump’s order would then fall to Rachel Brand, the no. 3 official at the Justice Department, who would then be asked to do Trump’s bidding, as did solicitor general Robert Bork for Nixon. If Brand refused, she probably would resign or be fired. Trump would then have to go down the pecking order at the DOJ until he found an official willing to execute his order.
To be sure, a political firestorm would certainly ensue. Outcries for Trump’s impeachment would be louder than ever. But with such a weak, cowardly, and compliant gaggle of Republican representatives in Congress – representatives who have refused to enact legislation to protect Mueller and who praised the Nunes memo for unmasking the FBI’s alleged perfidy – it is plausible that Trump would emerge unimpeached, if not unscathed. The only recourse then for the nation and the rule of law would be the 2018 elections.
With all the swirling reports about Trump’s fixation on getting rid of Mueller, an equally important issue that nobody appears to have discussed is what would happen to the work of the grand jury, which has been sitting for six months hearing testimony and examining documents in its investigation of possible obstruction of justice and conspiracy by Trump and others to interfere with the 2016 elections, false statements and perjury by witnesses, and a host of financial crimes. Does the removal of the Special Counsel undermine or nullify the grand jury’s investigation? Does it preclude the grand jury from voting an indictment? Does it preclude the grand jury from issuing a report?
Start with the rules that govern grand jury practice. Under the federal rules of criminal procedure, a grand jury is empaneled by a judge, and discharged by the judge. The special grand jury empaneled to hear the evidence presented by special counsel Mueller and his team was empaneled last August by Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia. She has the authority to supervise the grand jury, oversee requests for subpoenas, hear challenges to legal issues in connection with grand jury witnesses, and other matters facing the grand jury. Even before Mueller took it over, a federal grand jury in Alexandria, Virginia under Judge Howell’s supervision was hearing evidence in connection with the criminal investigation of Michael Flynn.
If Mueller is removed by Trump, presumably a new special counsel would be appointed by an appropriate Justice Department official likely with instructions to terminate the investigation. Ironically, after Cox was fired, President Nixon appointed a new special prosecutor, Leon Jaworski, who continued the grand jury’s investigation and argued in the Supreme Court that tape recordings of President Nixon were not privileged and should be admitted in evidence before the grand jury.
What happens if the new special prosecutor decides to end the investigation? Does the grand jury possess any power, under the supervision of Judge Howell, to continue its investigation and vote indictments? Does it have any power to issue a report?
Assuming a new special prosecutor does not want the grand jury to continue its work and seeks to terminate its investigation, does the grand jury have any power to act on its own if it wants to? And does the federal court have the power to protect the grand jury’s actions, even to the point of appointing a lawyer to assist the grand jurors in drafting indictments, or a report?
These questions raise fundamental constitutional issues involving separation of powers and checks and balances.
The concept of a grand jury acting on its own and independent of the prosecutor – the so-called “runaway” grand jury – has rarely been discussed, because it almost never happens. Before the modern system of criminal prosecution by trained prosecutors, grand juries acted on their own to investigate crime and bring charges. Today the grand jury is viewed as an arm of the prosecutor and typically follows the prosecutor’s recommendations. As a practical matter, the prosecutor brings the cases to the grand jury, decides which witnesses to call, instructs the grand jurors on the law, and recommends what charges the grand jury should consider.
But the grand jury is not a prosecutorial agency. The grand jury operates under the authority of the court, is legally independent of the prosecutor, and the integrity of its processes is protected by the courts. Indeed, the federal courts historically have exercised an inherent power to protect the fair administration of criminal justice, and especially an inherent power to supervise the work of grand juries to ensure that their functions and integrity are not undermined by government overreaching.
To be sure, the overreaching usually comes from misconduct by prosecutors in impairing in various ways the fairness and impartiality of the grand jury’s work, and courts have from time to time sought to remedy these abuses by dismissing indictments. It is noteworthy that the supervisory power of the federal courts has over the years been curtailed by the Supreme Court so that its exercise happens much less frequently. Still, it is hard to imagine a greater threat to the administration of criminal justice than an attempt by the chief executive of the nation to obstruct an investigation into his own wrongdoing in colluding with an enemy to undermine an American election.
It’s safe to assume that neither the special grand jury nor the supervising judge operates in a bubble. Presumably they are aware of the threat to the grand jury’s existence and its work. Given the court’s inherent power to protect the grand jury, and the grand jury’s likely willingness and desire to continue its critical work, it may happen that if the special grand jury is ordered to terminate its investigation, the grand jury, perhaps with the consent of the court, may choose to resist its demise, and continue its work. In such a situation, the court, under its inherent power to ensure that the justice system is not contaminated by governmental abuse, may appoint a special lawyer to assist the grand jury in drafting a report of its work and its findings.
Trump can fire the special counsel but he can’t fire the grand jury.
Professor Bennett Gershman is a Professor of Law at the Elisabeth Haub School of Law at Pace University, a former prosecutor in the Manhattan District Attorney’s Office, and a Special Assistant Attorney General in New York State’s Anti-Corruption Office.
[Image via ABC screengrab]
This is an opinion piece. The views expressed in this article are those of just the author.
