President Donald Trump does, indeed, have the ability to fire Special Counsel Robert Mueller, as White House Press Secretary Sarah Huckabee Sanders reminded reporters on Tuesday and as Obama Administration Solicitor General Neal Katyal, one of the authors of pertinent regulations, reminded everyone almost a year ago.
Sanders, people seemed to think, made news when she said Tuesday afternoon that Trump “certainly believes he has the power to make that decision,” that is, the power to fire Mueller.
“We’ve been advised that the president certainly has the power to make that decision,” Sanders said. “I know a number of individuals in the legal community, and including at the Department of Justice, said he has the power to do so.”
The remarks caused a bit a stir on Verified Account Twitter.
As Legal Editor Chris Geidner at BuzzFeed News helpfully pointed out in one place — and as the Law&Crime archives show — this is not new news.
One of the authors of regulations specifically outlining the method of the removing a special counsel, the aforementioned Neal Katyal, said nearly a year ago that Trump could directly fire Mueller by repealing a regulation that says he must ask the attorney general to do so.
Let’s just paste his thread here and talk about it.
In summary: Trump has the constitutional power to direct repeal of a regulation that the attorney general alone may fire a special counsel; the president controls prosecution power; the regulation, if repealed, subjects Trump to all of the negative publicity that will come with such a move because he has to repeal it publicly.
Since Jeff Sessions is recused on the matter of the Russia probe, the responsibility of deciding whether or not to fire Mueller, if Trump were to ask for this, falls to Deputy Attorney General Rod Rosenstein.
If Rosenstein declines to do so, Trump can take the repeal-the-regulation route, but not without consequences of ensuing press and public ire.