Forewarned is forearmed. So perhaps the country is lucky that President Trump’s allies have floated the possibility that he might fire special counsel Robert S. Mueller III. This speculation allows citizens to reflect on the consequences of such an action.
Trump has already taken the country to a darker place than even his sharpest critics would have imagined six months ago. He has brought to the White House the values of a failed Atlantic City casino owner turned reality-TV star. We don’t have to believe former FBI director James B. Comey’s account of Trump’s threats and blandishments. We can just watch the news and follow our Twitter feeds to see that, in many of his public statements, Trump has been deceitful.
Trump creates his own version of normal. So let’s briefly review this most abnormal chain of events: The president was informed on Jan. 26 that the FBI was investigating his national security adviser, Michael Flynn. The next day, Comey says, Trump summoned him to dinner to ask for his loyalty. Trump decided he had to fire Flynn on Feb. 13, saying even as he did so that Flynn had done nothing wrong and shouldn’t be punished. (Message: I’ll protect you.) He allegedly told Comey the next day, “I hope you can let this go.”
After Comey didn’t let it go, Trump fired him, too. He initially gave a false explanation about why, and then admitted it was because of the “Russia thing” and apparently bragged about it to the visiting Russian foreign minister. What is Trump so afraid of in the Russia investigation? Truly, we don’t know. But as prosecutors sometimes say about those under investigation: We may not know what he did wrong, but he does.
Trump’s behavior in office has been disruptive, to put it mildly. But with the appointment of Mueller, the near-universally praised former FBI director, it seemed the country would have a chance to take a breath and return to something like normal order. But no. The president’s friends are now pressing the argument that Mueller must go, too. If so, this crippling scandal could veer into a much more dangerous phase of presidential lawlessness.
Jack Goldsmith, a Harvard Law professor who headed the Justice Department’s Office of Legal Counsel during the George W. Bush administration, offered a careful assessment of the consequences of a Mueller firing early Tuesday on the Lawfare blog. His preface struck the right note of astonishment that we’re even discussing this topic: “This seems like such a bad idea — for the nation, and for the President — that I have a hard time believing it is a live possibility.”
Goldsmith proceeded to analyze what would happen if Trump did the unthinkable. Fortunately, it would not be as easy as his allies seem to believe. Justice Department regulations specify that a special counsel can be removed only for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause,” and that the “specific reason” must be spelled out in writing.
Because the Justice Department’s ethics office has already decided that Mueller doesn’t have a conflict resulting from his law firm’s representation of Trump family members, that argument looks soft. So do the others, given Mueller’s reputation for probity. Perhaps Trump could argue that Mueller’s appointment was compromised because it was triggered by Comey’s leak of one of his memos about the president. The FBI’s prepublication review guide does raise some questions about Comey’s actions, but not Mueller’s.
Deputy Attorney General Rod J. Rosenstein assured Congress on Tuesday that he would obey a presidential order to fire Mueller only if it were “lawful and appropriate.” Trump could conceivably then fire Rosenstein and keep issuing the order until someone carried it out.
Goldsmith takes heart that if this “crazy scenario” ever happened, “Congress would rise up quickly to stop the President,” and noted: “If I am naive in thinking this, then we are indeed in trouble.”
This gets to the heart of the matter. The protection against lawless behavior in a democracy, in the end, isn’t the institutional framework set forth in our Constitution, but the will of public officials to make that system work — and the ability of the public to put aside factional differences and support the rule of law.
If Trump is wise, he’ll leave Mueller in place and let this investigation run its course. But if he tries to sack the special counsel, he will be making a bet that the country is too weak and disoriented to stand together behind its constitutional structure of law — which, really, would be the saddest outcome of all.