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Trump Believes He Has Legal Authority To Fire Robert Mueller (And He Probably Does)


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President Donald Trump is currently enjoying a weekend at Camp David, his first there since assuming office–and his first weekend spent vacationing at a non-Trump-branded property–but if an Associated Press report is accurate, he’s not really “enjoying” it.

On Friday, the AP reported:

Trump advisers and confidants describe the president as increasingly angry over the [Russia] investigation, yelling at television sets in the White House carrying coverage and insisting he is the target of a conspiracy to discredit — and potentially end — his presidency.

The report goes on to note that some of Trump’s anger is directed at special counsel Robert Mueller and deputy attorney general Rod Rosenstein over their roles in the ongoing investigation and because the president believes they are prejudiced against him.

This belief–one shared by key advisor Newt Gingrich and Donald Trump, Jr.–may be leading the president towards a decision to fire Mueller, Rosenstein, or both. And, according to the report, Trump believes he has the legal authority to do exactly that.

But it’s not exactly clear whether Trump actually does have that authority.

The law on point here is 28 CFR § 600.7 (d), which states:

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

On its face, this law would only allow the attorney general to fire Mueller. In this case, however, Attorney General Jeff Sessions has recused himself. Thus, it would fall on Rosenstein to do the firing–and this is highly unlikely. Trump could, of course, order Rosenstein to fire Mueller, and if Rosenstein resisted, Trump could utter his favorite phrase until his heart was content that enough people were canned to protect him. The consequences of such a series of actions are impossible to predict, but it is worth noting that this is essentially what happened during the latter days of Richard M. Nixon‘s presidency.

However, another Saturday Night Massacre probably isn’t what Trump, his legal team and his pro-firing advisors have in mind. And they probably won’t just change the day of the week to facilitate the bloodletting. Rather, it’s likely Trump and his people are relying on the unitary executive theory.

The theory essentially holds that the president has absolute power over the functioning of the executive branch, and therefore, he can hire and fire his underlings at will–which would seemingly include Mueller.

Originally proposed by Ronald Reagan, the theory has been greatly expanded, both explicitly and implicitly, by every president since, with George W. Bush and Barack Obama having seized unprecedented amounts of power in particular; Bush for asserting his authority to ignore the law and torture if he felt like it; Obama for asserting his authority to assassinate American citizens.

So, in reality, the so-called “theory” of the unitary executive has functioned more like a fait accompli. For decades, presidents have created facts on the ground, exercised extreme amounts of power, grabbed more and more with memos or through uncontested actions, asserted legal rights and abilities that would have made their predecessors blush–and basically dared the congress, the courts and the public to try and stop them. But no one did. And now, here we are.

So, if President Trump really does decide to fire Robert Mueller, what’s anybody really going to do about it? What recourse–aside from the all-but impossible avenue of impeachment–does anyone really have? The law is silent here.

[image via screengrab, video courtesy ABC News]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

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