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Why Trump can’t fire Mueller — at least, not directly

White House press secretary Sarah Huckabee Sanders says President Trump “certainly believes he has the power” to fire special counsel Robert S. Mueller III. (Video: Reuters)

Update: On Tuesday, White House press secretary Sarah Huckabee Sanders told reporters that President Trump “certainly believes he has the power” to fire special counsel Robert Mueller. If he believes that, he is at odds with most legal experts, including those we spoke with for this article last December.

For all of the recent conversation about President Trump potentially firing special counsel Robert S. Mueller III, there’s an important but often-ignored caveat.

Trump can’t fire Mueller — at least not directly or at least without eventually getting an unprecedented rubber stamp from the Supreme Court.

We first looked at this issue in June, when the threat posed to the administration by Mueller’s appointment was largely theoretical. In the months since, Mueller’s team has announced charges against people associated with Trump’s 2016 campaign and seems poised to spend at least another year exploring Russian interference in the 2016 presidential campaign and any links to Trump’s team. In response, Trump allies, including Fox News Channel, have made a deliberate attempt to undermine the work of Mueller and the FBI, some clearly anticipating that Trump may want to cut off the investigation sooner rather than later.

Hence Trump being asked over the weekend whether he was planning to fire Mueller (which, even if successful, would almost certainly not end the investigation).

“No, I’m not,” Trump responded. But, again, he can’t.

First, we have to establish the cast of characters. There’s Trump, who, as president, oversees the executive branch of the government, including the Justice Department. That department is run by Attorney General Jeff Sessions. In March, after questions were raised about Sessions’s confirmation-hearing testimony about his contacts with the Russian ambassador to the United States, Sessions announced that, after talking with Justice’s ethics experts, he was recusing himself from any investigation related to the Trump campaign because he’d been part of that effort.

The ongoing investigation of any link between the campaign and Russian actors seeking to influence the election — an investigation that began months before Election Day — then fell to Deputy Attorney General Rod J. Rosenstein. After Trump fired FBI Director James B. Comey, it was Rosenstein who decided to appoint Mueller to act as special counsel. That appointment was focused on the question of Russian meddling in the election, but explicitly included the possibility of collusion between Russia and anyone on the Trump campaign.

How can Mueller be removed from office? Because the office is meant to operate largely outside the authority of the Justice Department to be independent, it’s not as simple as getting a pink slip. Under the regulations establishing the special counsel, removal is as follows:

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.

In this case, the attorney general has removed himself from the process, so such a removal would fall to Rosenstein. Last week, Rosenstein addressed the question of whether there was cause to fire Mueller when asked during a hearing: There isn’t.

As with all things legal, though, it’s a bit more complicated than that. Let’s explore alternate scenarios, walking through the following flowchart adapted from one we created in June.

We’ll start with the question at the heart of the issue. If Rosenstein’s boss is Sessions and Sessions’s boss is Trump, why isn’t the authority to fire Mueller simply Trump’s? In June, walking through the issue, we noted that this was a controversial question. But because it has risen to prominence of late, we’ll explore it more thoroughly now.

We spoke with Norm Eisen, a senior fellow at the Brookings Institution and former White House special counsel for ethics under President Barack Obama. He is also a prominent critic of the Trump administration.

So: Why can’t Trump simply ignore the regulatory standard for how Mueller should be fired and fire him directly? One argument in favor of this approach is that those regulations, by limiting Trump’s authority, are a violation of the president’s constitutional powers.

Eisen disagrees, pointing to the existence of the specific regulations.

“The president is not simply free — under well-established legal principles — the president is not free to disregard that,” he said.

The question is whether Trump (or any president) could act as a “unitary executive,” controlling the executive branch without constraints such as those saying that only the attorney general could fire Mueller.

“The Supreme Court has already rejected it!” Eisen said. A report from the American Constitution Society and Citizens for Responsibility and Ethics in Washington (the board that Eisen chairs) outlined the relevant precedents. That includes Morrison v. Olson in 1988, in which the court upheld the special counsel statute, even after considering how it might conflict with a president’s authority.

These are regulations, though, meaning that the executive branch could revoke them — allowing Trump then to fire Mueller directly. But this isn’t that easy, either.

“Once you have these regulations on the books, they are the law,” Eisen said. “So it might very well be that the president’s actions in that case were treated as a de facto repeal of the regulations — but then Congress has tied the president’s hands again, whether he [repealed the regulations] implicitly or explicitly.” (Implicitly meaning if Trump fired Mueller and then tried to claim that this was right after essentially having repealed the special counsel regulation.) The president can’t simply dump regulations, though: The Administrative Procedures Act of 1946 mandates a process for repealing regulations, which Trump would have side-stepped.

Notice in the flowchart that Trump trying to fire Mueller directly either by asserting that he has the right or by rejecting the regulations leads directly to another question: Is that action upheld?

“If Trump does anything to subvert the legal order … the legalities will need to be adjudicated by the courts and ultimately by the Supreme Court,” Eisen said. “We can’t pre-judge how that will turn out. But Trump’s repeated attacks on courts and judges and the rule of law system itself are not a point in his favor. Ultimately what that case is going to be about is not just removal power as to Mueller, it’s going to be about the rule of law itself.”

In other words, the nine people on the Supreme Court might be the ultimate arbiters of whether Trump has the authority to fire Mueller himself, and Eisen believes that the court would rule against the president. (On Monday, The Washington Post reported that Trump balked at his nomination of Neil M. Gorsuch to sit on the Supreme Court after Gorsuch criticized Trump’s attacks on the judiciary.)

Again, Trump stated publicly this weekend that he didn’t intend to fire Mueller himself, perhaps because he recognizes the legal challenges that would result. He has a few options then.

One, raised when we looked at this in June, is Sessions deciding that his recusal doesn’t apply to Mueller and that as attorney general he has the power under the special counsel statute to fire him. This seems unlikely and risky — and it, too, would probably be challenged in the courts. Sessions might also face disciplinary action by the Bar Association, Eisen noted. Rosenstein seems disinclined to fire Mueller even if Trump asked and, were he to do so, he’d need to offer cause for ending the special counsel’s tenure. (Or, again, the regulations dictating how the whole process works would need to be ignored and then defended in court.)

There’s another option that has floated to the surface recently: Firing Rosenstein. In 1973, when President Richard Nixon wanted to fire the special prosecutor looking into the Watergate scandal, he demanded that his attorney general, Elliot Richardson, take the action. Richardson resigned instead, as did his deputy attorney general, William Ruckelshaus. If Rosenstein were asked to fire Mueller, he might resign, triggering the same cascade of authority that Nixon experienced. (Eventually Nixon’s solicitor general, Robert Bork, fired the special prosecutor.) Or Trump might ask Sessions to fire Rosenstein — perhaps even firing Sessions if he refused.

What are the options then? Trump could replace Rosenstein with someone else. That could happen one of two ways. Either Trump could wait until the Senate is out of session and then fire Rosenstein and make a recess appointment to replace him — someone who wouldn’t need to wait for Senate confirmation to act. Or he could take advantage of the Vacancies Reform Act of 1998 and slide another member of his administration who’d already been confirmed by the Senate into that position. We looked at this scenario in July: Theoretically someone like Scott Pruitt could be moved from the EPA into the deputy attorney general position where he pulls the trigger on Mueller.

This isn’t foolproof either.

“The statute says that it applies when the current officeholder ‘dies, resigns or is otherwise unable to perform the functions and duties of the office,’” Georgetown University professor of law Paul Butler told us then. “That suggests that there might be a difference and the Act might not apply if the person is fired.” Once again, then, an attempt to replace Rosenstein with Pruitt might end up in the courts if Rosenstein is fired instead of resigning.

Were Rosenstein replaced, firing Mueller might not even be necessary. As Asha Rangappa wrote at Just Security:

Removing Rosenstein and replacing him with a DAG [deputy attorney general] who is at the very least more sympathetic to Trump could have drastic repercussions on the investigation. The new DAG could burden the Special Counsel with a requirement to provide an explanation for every move he makes, and then decide that they aren’t necessary or appropriate. In fact, since Mueller is required to provide the DAG with at least three days’ notice in advance of any “significant event” in the investigation, she would have plenty of time to intervene and challenge Mueller’s actions (and a less scrupulous DAG could even leak Mueller’s plans to the White House or others).

In other words, axing Mueller might not be necessary anyway, especially because doing so, directly or indirectly, would begin a massive and not necessarily successful legal fight, trigger a strong negative public reaction and almost certainly not end the investigation anyway. Trump may believe the inquiry is wrapping up soon, which doesn’t seem to be the case, but it may be politically wiser to simply wait it out, continuing to undermine those involved in hopes of dampening public acceptance of any ultimate findings or charges. That seems to be the more likely course of action at the moment and the one that the White House is pursuing.

But even if Trump had a sudden change of heart and wanted Mueller gone? This isn’t as neatly wrapped up as an episode of “The Apprentice.”