It’s pretty crazy in Washington these days. Soon it could get even crazier.
Prominent lawyers and politicos have started to chatter about the odds that President Donald Trump might fire Robert Mueller, the independent counsel looking into Russian influence in the 2016 presidential election.
This isn’t just inside-the-Beltway gossip. Over the weekend, a Trump lawyer publicly refused to rule out that possibility, stressing that the president has the necessary authority. Then on Monday, Trump’s friend Christopher Ruddy, a right-wing media executive, told “PBS NewsHour”: “I think he’s considering perhaps terminating the special counsel. I think he’s weighing that option.” Although Ruddy, who said he spoke to the president by phone over the weekend, said he personally thought it would be a mistake to take that step, other Trump cheerleaders, including former House Speaker Newt Gingrich, have begun assailing Mueller, a former director of the Federal Bureau of Investigation with a sterling reputation.
Ruddy said Mueller has some “conflicts” because his former law firm, Wilmer Hale, also represents Ivanka Trump, the president’s daughter, and her husband Jared Kushner. Also, Ruddy said, Mueller was considered for FBI director before he was appointed special counsel.
Democrats, reacting to the chatter, said that if Trump fired Mueller they’d try to enact an independent counsel statute so they could appoint him. They didn’t explain how they’d push that idea through a Republican Congress.
Trump defied conventional wisdom last month when he fired FBI director James Comey after allegedly entreating Comey to back away from the FBI’s Russia probe. That showed that Trump is not one to be impeded by political protocol - Comey’s 10-year term wasn’t set to expire until 2023. Mueller was appointed to investigate whether Trump or his associates had links to Russian hackers, and Trump lacks the direct authority to dismiss him.
But he could order the Justice Department to do so. There, the job would first fall to the person who appointed Mueller, Deputy Attorney General Rod Rosenstein, because Attorney General Jeff Sessions has recused himself from involvement in the probe.
If Trump instructs Rosenstein to dump Mueller, it would evoke memories of 1973, when the two top Justice Department officials, Elliott Richardson and Bill Ruckelshaus, resigned rather than obey President Richard Nixon’s order to fire Archibald Cox, the special prosecutor conducting the Watergate investigation.
Rosenstein would probably refuse. A highly regarded Justice Department careerist, he tapped Mueller - infuriating Trump - after the White House tried to pin the Comey firing on him.
It then would get complicated. In 1973, Nixon turned to the third-ranking Justice official, Solicitor General Robert Bork, who fired Cox in his capacity as acting attorney general. Legal experts say that only a Justice official who has been confirmed by the Senate, as Bork had been, would have the authority to fire Mueller.
Apart from Rosenstein and Sessions, the only confirmed Justice official is Rachel Brand, the associate attorney general, whom the Senate approved on a party-line vote. It seems questionable that she would put her reputation at risk by going along with such a directive.
That would leave Sessions himself. First he’d have to reverse his recusal. Trump, who expressed displeasure with Session’s withdrawal from the case, wouldn’t hesitate to apply pressure. But the counter-pressure would also be strong.
Sessions, a major Trump campaign supporter, disqualified himself on the advice of the department’s ethics office after he had failed to disclose several meetings he had with top Russians during his confirmation hearings.
Mueller has wide authority to look into matters related to Russian election meddling, including collusion with Trump operatives, financial links between Trump and Russia and whether the president tried to obstruct the inquiry.
In 1973, there was such a firestorm following Nixon’s move against Cox that the White House was forced to appoint another special prosecutor, Texas attorney Leon Jaworski. He proved as tough as Cox, successfully suing the White House for information, including Oval Office tapes that led to Nixon’s resignation nine months later.
Albert R. Hunt is a Bloomberg View columnist.