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Opinion How Republicans could help Trump constrain Mueller — with no fingerprints

(Carolyn Kaster/AP)


For months, speculation has centered on the possibility that President Trump might try to quash special counsel Robert S. Mueller III’s investigation with a dramatic action — say, by ordering his firing in Trump’s own rendition of the Saturday Night Massacre. For good reason: Trump did privately order the White House counsel to carry this action out — which failed becauseDonald F. McGahn refused. Meanwhile, Trump’s media allies, undaunted, continue to try to goad the president down this dangerously autocratic path.

But there’s another stealth method that Trump could use to constrain the Mueller probe. And one possibility that hasn’t been sufficiently considered is that congressional Republicans could help him pull that off — with no fingerprints.

On Tuesday morning, two good-government experts — former White House ethics counsel Norm Eisen and Brennan Center contributor Victoria Bassetti — laid out part of this scenario in USA Today. They noted that the recent resignation of the No. 3 person at the Justice Department — Rachel Brand — clears the way for Trump to try to install a loyalist in her place. This would mean that if Deputy Attorney General Rod J. Rosenstein is fired — which Trump has also considered — that loyalist would oversee the Mueller probe.

But Eisen and Bassetti point to a nuance that’s worth appreciating:

The caliber of Brand’s replacement will signal how worried we should be. If the president nominates a crony, that will be a sign of trouble.
Indeed, Trump, with his disdain for norms, may not even bother to send a replacement to the Senate for confirmation. He may try to use a statute, the Federal Vacancies Reform Act, to temporarily insert someone into Brand’s post as the [associate] attorney general. He has already used that provision to thrust a loyalist into another institution he wanted to control. In late November, Office of Management and Budget director Mick Mulvaney got the additional post of interim head of the Consumer Financial Protection Bureau.

There’s an additional wrinkle to this that Eisen and Bassetti do not consider. What happens if Trump temporarily inserts an obvious loyalist in the post, and Senate Republicans do not bother asserting their authority by demanding that Trump submit someone who must undergo Senate confirmation?

Such an action by Trump is a very real possibility. Trump has already done this with Mulvaney. What’s more, NBC News reports that Brand stepped down precisely because she fears that Trump may fire Rosenstein and that this would put her in the position of overseeing the Mueller probe.

Trump says the Justice Department is politically biased. Lawfare’s Quinta Jurecic examines the investigation Trump calls "fake news." (Video: Kate Woodsome, Adriana Usero/The Washington Post)

What would happen if Trump installed a loyalist without Senate confirmation? Congressional scholar Norman Ornstein told me in an interview Tuesday morning that the question would then be whether Senate Republicans would use their stature and platforms to denounce the move.

“They could use their leverage in the Senate to say, ‘This is unacceptable,’ and make it clear that this could obstruct justice,” Ornstein said. By contrast, Ornstein noted, “They could say, ‘Hey, this is a legal act that he’s taking,’ or they could say, ‘Look, there’s no indication that this person will do something terrible.’ They could be complicit by inaction.”

This would be entirely in keeping with what we’ve already seen from congressional Republicans. While they have taken care to stress rhetorically that they want Mueller’s independence preserved, they have tacitly helped lay the groundwork for that independence to be undermined. They backed release of the Nunes memo in the full knowledge that Trump was mulling the use of it as a pretext for firing Rosenstein. They declined to pass legislation protecting Mueller, arguing that Trump didn’t appear to pose a threat to him right at that moment, even though he previously ordered him fired.

It’s easy to see Republicans repurposing this argument to defend Trump’s installation of a loyalist to replace Brand without Senate confirmation: They could say there are no indications that this person will constrain that probe improperly. Yet this could become a real problem. As MSNBC’s Ari Melber recently argued, that person could have real influence over Mueller’s probe later in the process, by, say, building internal resistance at the Justice Department to Mueller’s findings, or by blocking the public release of those findings.

As Melber notes, this could prove a backdoor way in which Trump could further undermine the independence of our institutions, by “slowly bending the system and personnel toward him,” thus  finding new ways to “grind down, pressure and reshape law enforcement.” We’ve already seen this, too: The Times recently reported that Trump’s frequent attacks on Attorney General Jeff Sessions for failing to protect him from the probe have left Sessions constrained from defending the department against further attacks. He’s been neutered.

The debate over how far Trump will ultimately go down the path toward autocracy to shield himself and his associates from accountability is often framed as a purely speculative one about possible future actions. But we’ve already seen Trump go to great lengths to do this in multiple concrete ways. And here’s another way this needn’t be speculative: Sooner or later, Trump will choose a replacement for Brand. How he does this will tell us a lot about where this is all going.

* TRUMP WHITE HOUSE DEFIES RECENT HISTORY: The New York Times notes that the Trump White House’s high turnover rate has not been seen in decades:

Trump is presiding over a staff in turmoil, one with a 34 percent turnover rate, higher than any White House in decades. He has struggled to fill openings, unwilling to hire Republicans he considers disloyal and unable to entice Republicans who consider him unstable. Those who do come to work for him often do not last long, burning out from a volatile, sometimes cutthroat environment exacerbated by tweets and subpoenas.

Remember when Trump told us that electing him would bring in a businessman to run things?

* KOCH BROTHERS GIVE AIR COVER TO GOP TAX BILL: Time magazine reports that the Koch brothers’ conservative donor network is pouring millions into new ads blasting vulnerable Democratic Sens. Claire McCaskill (Mo.) and Joe Donnelly (Ind.) for voting against the GOP tax plan. The ads claim they voted against “tax cuts for you.”

In reality, they voted against a large permanent corporate tax cut that lavishes huge benefits on the rich, exploding the deficit and requiring the tax cuts “for you” to be temporary. But the Kochs will invest $20 million in turning the plan into a boon for the GOP in the midterms — i.e., in misleading voters about its true priorities.

* TRUMP BUDGET WOULD UNLEASH FLOOD OF RED INK: Politico’s David Rogers, a veteran of covering Congress and budgets, tallies up just how damaging Trump’s budget would be over the long term, when taken alongside the massive GOP tax cuts:

Even if Trump were to get all the spending cuts he wants, plus his ambitious 3 percent growth, deficits over the next decade would total $7.1 trillion. … Calculations by POLITICO show that the combination of tax cuts and spending increases approved in the past 60 days could increase government borrowing by over $900 billion through fiscal 2020.

In this sense, Trump turns out to be a very conventional Republican indeed.

* THE DANGER POSED BY TRUMP’S BUDGET: The Post reports that some economists not only scoff at the White House’s projections of growth in the budget; they also see potential economic danger in its deficit-busting:

His budget predicts the longest expansion in U.S. history, with moderate inflation and unemployment falling to 3.7 percent in 2019, the lowest level since 1969. Some economists, however, say the more likely result is growth picks up for a year or so and then a downturn hits. By then, the U.S. government would be even deeper in debt with less money to spend to revive the economy.

And how reassured are you by the fact that the Trump team would be in charge at that point?

* REPUBLICANS FRET ABOUT TENNESSEE SEAT: Politico reports that Republicans are urging Sen. Bob Corker to reconsider his plans to retire, but he’s not commenting on the race:

A faction of Republicans in Tennessee and Washington are worried that the favorite for the Republican Senate nomination, Rep. Marsha Blackburn (R-Tenn.), could lose the general election — and with it the Senate majority. … An internal poll taken in late January shows former Democratic Gov. Phil Bredesen narrowly edging out Blackburn in a hypothetical match-up.

Dems have to flip just two seats to win the majority, provided they don’t lose any of their own, and Tennessee (along with Nevada and Arizona) would give them a third chance at that.

* WHY TRUMP OFFERED A FAKE INFRASTRUCTURE PLAN: Paul Krugman explains why Trump’s new infrastructure plan is basically a scam, and asks why he didn’t roll out a real one, given that it would have been popular:

Trump always defers to Republican orthodoxy, and the modern G.O.P. hates any program that might show people that government can work and help people. But I also suspect that Trump is afraid to try anything substantive. To do public investment successfully, you need leadership and advice from experts. And this administration doesn’t do expertise, in any field. … So the Trump administration probably couldn’t put together a real infrastructure plan even if it wanted to.

It’s also important to see Trump’s infrastructure scam in its larger context, i.e., as part of a much larger betrayal of his broader “populist economic nationalism” campaign agenda.

* TRUMP WANTS A DEAL ON DREAMERS: Good morning, Mr. President:

Trump knows he’ll look good if he signs a deal protecting the dreamers, and will look like a failed dealmaker if he doesn’t. Why would Trump walk away from a deal allowing him to claim he got some money for the wall and succeeded on dreamers where Obama failed?