Can Mueller Refuse to Be Fired?

What would happen if President Trump decided to dismiss Special Prosecutor Robert Mueller, much as Richard Nixon fired Special Prosecutor Archibald Cox during the latter’s Watergate investigations? Were that to happen, there is a fairly solid consensus that the US political system would have entered a severe Constitutional crisis. If a president can dismiss a special prosecutor investigating him and his campaign and get away with it, he would have succeeded in putting himself above the law.  

How would the other branches of government respond? Some republican Senators have basically told the president that he should not go there because of the crisis it would cause, hinting that Congress would have to respond. But only a minority has spoken out. Most republicans and many democrats have emphasized only that the investigation must continue until it reaches its conclusion. But an increasing number of republicans, backed by right-wing media outlets, have started to question the Mueller investigation altogether, possibly laying the public relations groundwork for Trump to fire Mueller. It appears, then, that a unified response by Congress would be unlikely, at least in the short term. Trump might actually be able to get away with such an action, at least for a while, and democrats would have little recourse.

But perhaps events could unfold differently. If the president, acting outside of the law, fired the special prosecutor, would the special prosecutor automatically decide to obey such an order? It is conceivable that Mueller would decide that his legal obligation was to pursue the investigation along the lines drawn up by the order creating his position and office?

Mueller’s response could contain multiple parts. He could announce that he would obey the order, while leaving the investigation in the hands of his deputy. Or he could state that he was waiting for clarification from the Department of Justice, specifically Deputy Attorney General Rod Rosenstein. Or, he could contest the legality of the order in court. There may be other options as well. All of these would depend on how the order was carried out. If Trump ordered Mueller’s dismissal himself, the legality of that order could be contested because it is the Department of Justice that creates and dismisses the special prosecutor.

If Trump insisted that Attorney General Jeff Sessions remove Mueller, such an order would appear to be illegal, because Sessions had recused himself leaving the matter in Rosenstein’s hands.

Trump’s strongest legal position would be to have Rosenstein fire Mueller, but that might pose challenges as well. The current rules governing dismissal of the special prosecutor are the following (but substitute Rosenstein for the Attorney General) :

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 their removal.

In other words, there must be solid grounds (misconduct, conflict of interest, or “other good cause”), to fire the special prosecutor. Rosenstein’s office, or the next person in line if Rosenstein refused to comply and was fired, would have to carefully construct the order dismissing Mueller. If it was done hurriedly the way the letter was drafted firing FBI Director James Comey, it would be open to legal challenge and could actually add to the case that Trump was obstructing justice. And the initiative for the dismissal must come from the Department of Justice, not the White House. In either case, it appears that Mueller would have legal grounds for contesting the action.

The point of all this is to show that there may be realistic options for contesting any dismissal of Special Prosecutor Mueller, either by Mueller himself or others who might file suit contesting the legality of the president’s actions. Democrats in Congress should be  raising this issue if only to make Trump think twice about taking the fateful step. In addition, such statements would certainly get the attention of Mueller’s team and help them think about their options. Finally, it would be a way to push back against the growing number of voices on the right attempting to de-legitimize the investigation.

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