by Steve Vladeck, Professor of Law, University of Texas School of Law
The front page of Friday’s Washington Post includes a story about the Trump Administration quietly investigating ways of firing Special Counsel Robert S. Mueller III or otherwise shutting down his ongoing (and apparently widening) investigation into Russian tampering in the 2016 presidential election. While there are three possible avenues through which Mueller could legally be removed, which I outline below, it is possible that any or all of these moves could themselves be treated as obstruction of justice, whether by the Special Counsel (if it somehow survives the affair) or Congress in impeachment proceedings. That is to say, even if the President lawfully has the power to fire someone, that doesn’t mean such action is completely unlimited. (For instance, the President could not fire an at-will employee simply because of their race, religion, or sex.)
And this leads to perhaps the most important bottom line: The complexities of the legal issues aside, what is hopefully clear is that the President has a fair amount of legal authority to act, or to at least attempt to act, in this space—authority that Congress has not meaningfully sought to circumscribe since it enacted the independent counsel statute in 1978. But as the obstruction point underscores, the real question is not whether the President has a legal right to fire Special Counsel Mueller, but whether such a legal move might nevertheless provoke his current supporters in Congress to turn against him—or, at the very least, to more aggressively support other investigations into the current Administration and the Trump campaign.