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Trump Might be Able to Fire Mueller, Without Actually Firing Mueller


For several months now, we’ve been on Mueller-watch, waiting to see if and when President Trump takes action to remove Robert Mueller from his post as special counsel in the Russia probe. This past weekend, Trump was asked point-blank whether he intends to fire Mueller – an inquiry to which POTUS responded an unequivocal, “no, I’m not,” followed up by the usual insistence that there was “no collusion whatsoever” between his campaign and Russia.

While it’s certainly a bit calming to hear that our president isn’t planning to go full-scale Nixon on the special counsel charged with investigating Russian interference into our election, Trump-watchers aren’t sighing with relief just yet. All signs are pointing to 45’s employing something of a work-around that would result in Deputy Attorney General Rod Rosenstein’s being the next to hear, “you’re fired!” by President Trump. Yesterday, the Washington Post published a story detailing POTUS’ recent criticisms of Rosenstein. According to senior officials, Trump has been calling Rosenstein “weak,” and has mocked Rosenstein’s recent testimony before the House Judiciary Committee; Trump is also reportedly unimpressed with Rosenstein’s accountability, and has characterized Rosenstein as a “threat” to his presidency. Oh, and Trump also thinks Rosenstein is a Democrat.

Let’s just recap a little. In real life, Rod Rosenstein is a Republican, appointed as U.S. attorney for the District of Maryland in 2005 under President George W. Bush. Rosenstein is currently the Deputy Attorney General, reporting to boss Jeff Sessions (who, for those keeping score at home, Trump has also called out for being “weak”).

Sessions (likely recognizing an impending sh*tstorm from its inception) recused himself from the Russia investigation; for that one matter, Rosenstein is the top dog. We’ve opined many times here at Law&Crime that as all things Russia continue to heat up, we expect Trump to fire (or at least effectuate the firing of) special counsel Robert Mueller. If Trump were to insist that Mueller go, it would likely be Rosenstein who’d get the call.

Trump, you see, likely lacks the legal ability to fire Mueller himself; while 45 would be almost certain to declare his power limitless, the optics of firing Mueller directly may actually go beyond what even Trump is willing to tolerate. The AG, on the other hand (or here, the DAG), clearly has the authority to fire Mueller. Whether Rosenstein would be willing to do so, though, is clearly another matter entirely.

Brief flashback: During the Watergate scandal, Richard Nixon tried to fire the special prosecutor, Archibald Cox. Both Nixon’s Attorney General and his Deputy Attorney General refused to fire Cox, so Nixon kept going down the chain until he found someone who would do his bidding (that someone ended up being Robert Bork – the then Solicitor General, who ended up on the short list of failed Supreme Court justices).

Should Trump direct Rosenstein to fire Mueller, Rosenstein would likely face the same choice Cox did – comply or resign. And it sure looks like Trump is setting the wheels in motion that he wants Rosenstein out. If Rosenstein finds himself on the chopping block, Trump may move on to the next target, searching for someone to do his bidding. As we’ve said before, next in line is likely Rachel Brand, who is coming up on her one-year anniversary as the DOJ’s #3. We’ll just have to stay tuned on that one, but she may be more willing to can Mueller.  Right now, we can choose to take White House lawyer Ty Cobb‘s statement at face value:

“As the White House has repeatedly and emphatically said for months, there is no consideration about firing or replacing the special counsel with whom the White House has fully cooperated in order to permit a fully vetted yet prompt conclusion.”

Alternatively, we can continue to wait for Trump to act, well, Trump-like, and just fire everyone in his path.

Public statements about his DOJ officials aside, President Trump is absolutely right about one thing. Rod Rosenstein is a threat to his presidency. So is Robert Mueller. During a presidency like this one, when the boundaries of legality have been exceeded right from the start, any competent legal professional is a threat. Those armed with the power of federal law enforcement should be most scary of all to Mr. Trump – not because they look or are “weak,” but because of the strength Trump (and anyone else with common sense) knows damn well they can wield.

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos