The Post reports: “During Tuesday’s White House briefing, press secretary Sarah Huckabee Sanders was given an opportunity to talk about firing [special counsel Robert S. Mueller III]. But rather than play down the prospect, she answered the question and asserted that [President] Trump could, in fact, fire Mueller if he wanted to.”
Her answer should create heartburn for Republicans in Congress who insist that there is no real risk Trump will dismiss Mueller, and therefore no need for lawmakers to act to restrain Trump. That excuse is wearing thin.
Even more frightening, the New York Times reports that Trump considered firing Mueller at least twice — once in June and again in December. (Interestingly, his ire was reportedly triggered by a report that Mueller had subpoenaed records from Deutsche Bank. Trump seems particularly concerned whenever Mueller veers close to his financial affairs.)
Moreover, Sanders’s formulation is not consistent with what many members of Congress and outside legal experts have concluded. “Under the current regulations, he does not have the ability to personally fire Mueller, but the White House is right that if Trump wants to remove him, he eventually can,” former Justice Department public affairs director Matt Miller tells me. “But he will have to burn down the Justice Department to do it, and one hopes such a hostile act to the rule of law would bring about the end of his presidency.”
If Sanders meant that Trump could fire Mueller by going through Deputy Attorney General Rod J. Rosenstein, that raises two problems. If Rosenstein resists, Trump would be forced to fire him, putting the entire investigation in jeopardy. More important, former federal prosecutor Joyce White Vance argues, “This isn’t about whether he can, it’s about whether he should.” She explains that this is akin to allowing “a cartel that traffics drugs [to] fire a prosecutor that’s investigating it.” She continues: “If we have a different rule for the president, then we’ve become a regime that turns a blind eye to corrupt leadership. No one is above the law, not even the president.”
Did Trump receive a legal opinion on this point, and if so, from whom? Perhaps the Senate or House judiciary committee should conduct a hearing on this.
But this is more than an academic exercise. News reports suggest that Trump was considering firing Rosenstein and is more unhinged — and furious with Mueller — than ever. As CNN put it, “His boiling display in the White House Cabinet Room on Monday evening only served to underscore the president’s most visible weakness: his ambient rage over Robert Mueller’s Russia investigation.” His conduct may make some of his aides uncomfortable:
Defense Secretary James Mattis sat stone-faced across the table, his hands folded and his eyes cast downward. Bolton, sitting to Trump’s left, adjusted his glasses and fiddled with his pen. Vice President Mike Pence, at Trump’s right, stared ahead with an unchanging expression of concern.
Other military leaders looked on silently as the commander in chief attacked his attorney general, deputy attorney general and special counsel in a blistering partisan attack that stood out even by Trump’s standards.
The president lacks anyone — a Hope Hicks, a family member or, at this point, an empowered chief of staff — who is both willing and able to constrain him. In the past, some advisers have refused to act on his orders. White House counsel Donald McGahn refused to fire the special counsel. FBI chief Christopher A. Wray for a time refused to fire then-deputy director Andrew McCabe. But there is no guarantee that aides will continue to block Trump or that he won’t decide to fire people himself rather than going through an intermediary.
This is precisely why Congress must act to stave off a constitutional crisis. By refusing to do so, Congress is conveying, intentionally or not, its lack of determination to challenge Trump. One can imagine that if he were to fire Mueller, he’d cite Congress’s failure to act as a justification for his action. Rep. Jerry Nadler (N.Y.), the House Judiciary Committee’s ranking Democrat, warned Trump on Tuesday in a written statement: “Any move against Special Counsel Mueller, against Deputy Attorney General Rosenstein who oversees the Special Counsel’s office, or against Attorney General Jeff Sessions who is recused from such matters, must be seen for what it truly would be — the obstruction of justice and an abuse of power.” If nothing else, that statement should be embodied in a joint resolution and be put to a vote.