Tuesday, June 13, 2017


You can read this piece by Jack Goldsmith, a former senior legal adviser in George W. Bush's administration, if you want to understand the possible mechanics of a Robert Mueller dismissal by the Trump White House. Greg Sargent offers a summary:
The short version: Justice Department regulations permit the attorney general — in this case, it would be deputy Rod J. Rosenstein, because Jeff Sessions has recused himself — to remove the special counsel if he engages in misconduct or “for other good cause.” But Trump could try to invent a “good cause” and order Rosenstein to fire Mueller.

If this happened, Goldsmith writes, presumably Rosenstein would resign, and at that point, complicated succession questions at the Justice Department would take over. But the bottom line is that Trump might be able to get Mueller out — perhaps via a presidential directive that overrides the regulatory need for “cause” and simply fires Mueller.
I could also imagine Sessions, at Trump's insistence, un-recusing himself from the Russia investigation just so he can fire Mueller himself -- we know that the Sessions recusal infuriated Trump.

But more likely the firing will play out the way James Comey's firing did: It will seem to conform to the letter of the law. Rosenstein or whoever has authority in his stead will offer a pretext for the dismissal. And then Trump will do an interview and say that it was all his idea and he did it because he wanted to. In other words, Trump will be saying to all decent Americans: Yeah, I did this. So, what are you gonna do about it?

Sargent asked Adam Schiff, the ranking Democrat on the House Intelligence Committee, about all this. Schiff sincerely believes that Congress would move to reinstate Mueller, following a scenario outlined by Goldsmith:
In a follow-up interview with me, Goldsmith said Congress could act legislatively to reinstate Mueller. But if it really came to this, Trump would probably veto any such effort, and Goldsmith added: “Action by statute against the president on the Mueller issue would likely require veto-proof super-majorities.”

That would mean that at least a dozen GOP senators, and more than 40 GOP representatives, would have to join such an effort. In our interview, Schiff said he thought this would likely happen.

“We would probably take up a bill that would establish an independent counsel for the purposes of this investigation, and give the appointment power to legislative leaders who would appoint Bob Mueller,” Schiff said....

Such a bill would probably “pass by a veto-proof margin,” Schiff told me.

On this, I'm with Jonathan Chait:
Why should the firing of Mueller play out much differently than the firing of Comey? The pro-Trump right will back him enthusiastically on Fox News and talk radio. The anti-anti-Trump right, a smaller and weaker faction, might initially object, but will quickly turn its attention to quibbling with or mocking his critics. (Get a load of this Berkeley professor who says firing Mueller is like the Reichstag fire! Or what about the time Bill Clinton or Barack Obama did something bad?)

Trump is not impervious to public opinion. He has already dropped to the 38-40 percent of the country that constitutes his hard-core base. But firing Mueller will play out as a process debate. The arguments conservatives will see on Fox News — that firing Mueller is legal, that Mueller had surrounded himself with suspiciously liberal lawyers — will carry the day with the base. The Republican Congress will put up no more resistance than it did in the face of the equally shocking act of demanding loyalty of Comey and then firing him. Only failures with tangible effect, like a recession, a failed war, or a bungled disaster response, could drive Trump’s approval rating down into the 20s, which is what it would take for Republicans in Congress to contemplate impeachment.
Josh Barro disagrees. He thinks Republicans in Congress -- some of them, at least -- are putting up a surprising amount of resistance to Trump's obstruction-of-justice efforts:
Republicans could be doing more to hold Trump accountable, but they could also be doing less.

Despite the uneven quality of the various committees, it's worth taking a step back to marvel that even some committees in the Republican-held Congress are conducting aggressive and politically damaging investigations of a Republican president in the first months of his administration.

The system is sort of working, in spite of Republicans' partisan interests and in spite of Trump's efforts at interference — or perhaps because of Trump's backfiring efforts at interference, which have made it less politically tenable for Republicans in Congress to cover for him by, for example, declining to schedule public interviews with witnesses like Comey.
But to GOP voters, the hearings operate as a morality play in which Comey is a villain and Trump is a hero (and any senator who's more worried about unmasking than about Russian interference in elections is one of the good guys). Just participating in hearings doesn't turn Republican members of Congress into the enemy, in GOP voters' eyes. Hearings are also operating as a very effective smokescreen for the GOP. Liberals are paying more attention to Russiagate than to the GOP agenda, particularly, at this moment, the Senate's stealth Trumpcare bill, which will probably pass this month. So in that way they're actually working to Republicans' advantage.

Reinstating Mueller would be different. It would require Republicans to unambiguously defy a president the GOP voter base still loves. That's not going to happen.

So, sure, Trump will fire Mueller, and get away with it. If he were a more sophisticated strategist, I could even imagine him firing Mueller on the day the Senate finally releases its Trumpcare bill. That would greatly minimize the amount of media attention the bill's text receives. Trump's probably not smart enough to think of doing that -- but Mitch McConnell is. We'll see.

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