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.
I. The Direct Termination Route
The Special Counsel is governed by a federal regulation, 28 C.F.R. part 600, which dates to 1999. Under one provision of the regulation (28 C.F.R. § 600.7(d)), “The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General.” The regulation further provides that “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,” but the regulation does not clearly create a right on the Special Counsel’s part to challenge a removal decision on the ground that it’s for some other reason.
Critically, the “Attorney General” here, as Mueller’s appointment itself suggests, is not Attorney General Sessions, who has recused (apparently to President Trump’s chagrin) from Russia-related matters. Instead, it is the Acting Attorney General, which, per the current Executive Order on DOJ succession, is the Deputy Attorney General (Rod Rosenstein). If President Trump wanted to fire Mueller directly, presumably, he would order Deputy Attorney General Rosenstein to do so. Rosenstein could either comply or resign, at which point we would start marching down the DOJ line of succession—which, at the moment, goes from Rosenstein to Associate Attorney General Rachel Brand, and from Brand to Dana Boente, the U.S. Attorney for the Eastern District of Virginia. As with the Saturday Night Massacre, President Trump could keep firing DOJ officials who refused to fire Mueller until he finds one (in Nixon’s case, Robert Bork) who will.
The upside of the direct termination route is that it is, well, direct. It is also legally unassailable. The downsides are two-fold: First, a repeat of the Saturday Night Massacre would surely have significant reverberations on Capitol Hill (where Mueller is widely respected), and might finally provide the basis for a decisive wedge between congressional Republicans and the White House. Second, and more practically, firing Mueller would not actually end the investigation—which is now well-staffed and well underway. Instead, it would then fall to whoever fires Mueller to appoint someone to succeed him, since the regulation (perhaps deliberately) does not provide a means for anyone other than the Special Counsel to terminate an ongoing investigation.
II. The Regulatory Repeal Route
This leads to the second possible option—and one designed to destroy the investigation—which is to simply repeal or otherwise rescind the governing regulation, 28 C.F.R. part 600. How easy (or hard) this would prove to be depends to at least some degree on whether those regulations are treated as a “legislative” or “non-legislative” rule for purposes of the Administrative Procedure Act (APA). The former require all of the procedural accoutrements of administrative law before they can be rescinded, include public notice and comment; the latter do not. (As Professor David Franklin wrote last year, “it turns out to be maddeningly hard to devise a test that reliably determines which rules are legislative in nature and which are not.”) To be fair, the Special Counsel regulation has some of the hallmarks of legislative rules (which are harder to repeal). But even if the Executive Branch claims that the Special Counsel regulation is a non-legislative rule (and, indeed, even if it is ultimately correct on that score), it is not hard to imagine that there will be litigation over that issue—litigation that could take time before definitively resolving the matter. All the while, presumably, the investigation could continue apace.
III. The Unitary Executive and the Nuclear Option
This leads to the third—and most controversial—possibility, that the President will invoke his constitutional authority as a wedge against either Mueller’s appointment specifically or the existence of the Special Counsel in general, and will issue an Executive Order terminating Mueller, abolishing the Special Counsel in its entirety, or both. The difference between this approach and the second option outlined above is that this one would not depend upon the vagaries of federal administrative law, but instead posits that the President would assert as a constitutional matter that he cannot be stopped from firing a Special Counsel and/or shutting down an investigation—an assertion of authority that could not be reconciled with either the terms of 28 C.F.R. part 600 or the existence of the ongoing investigation. And the pursuit of this option would, without question, trigger a constitutional showdown between the Special Counsel and the President, of the likes not seen since the fight over the Watergate tapes that culminated in the Supreme Court’s July 1974 ruling in United States v. Nixon.
As for who would win such a constitutional showdown, who knows? But one has to suspect that such an assertion of indefeasible executive power would not sit well with Congress, and might, at the very least, ratchet up the pace and scope of the congressional investigations even if/as the Special Counsel’s criminal investigation hangs in the balance.