Friday, July 21, 2017


So we know this from a Washington Post story:
Some of President Trump’s lawyers are exploring ways to limit or undercut special counsel Robert S. Mueller III’s Russia investigation, building a case against what they allege are his conflicts of interest....
And we know this from a New York Times story:
President Trump’s lawyers and aides are scouring the professional and political backgrounds of investigators hired by the special counsel Robert S. Mueller III, looking for conflicts of interest they could use to discredit the investigation — or even build a case to fire Mr. Mueller or get some members of his team recused, according to three people with knowledge of the research effort.
Here's what I don't understand: Why hasn't Trump already acted? I know, I know: If Trump fires Mueller, it will set off a "constitutional crisis"? But what does that mean in 2017 America? Not a single Republican in Congress will do more than claim to be "deeply troubled." There'll be a few lefty demonstrations, but probably fewer than there have been against Trumpcare and the travel ban, because it's easier to grasp the impact of those policies on ordinary people's lives. "The streets" are not going to "explode." Trump could easily get away with this.

So why hasn't it happened? The conventional explanation is that he'd have to conduct his own version of Richard Nixon's Saturday Night Massacre -- though what's stopping him is unclear to me, because there'd be no reaction to it beyond howls of outrage from non-Republicans and hand-wringing, at most, from Republicans.
Only the person acting as attorney general, currently Rod Rosenstein on matters related to the probe, can fire Mueller, and he’s said he won’t do it without “good cause.” So Trump would first have to purge the upper ranks of the Justice Department until he finds someone willing to follow his orders and dismiss the special counsel....

A Congressional Research Service report lays out how a special prosecutor can be removed.

“To comply with the regulations, the Attorney General himself must remove the special counsel, not the President or a surrogate (unless, as noted previously in this report, the Attorney General has recused himself in the matter under investigation),” the agency concluded....

But Trump does possess authority to fire Rosenstein for any reason, including refusal to remove Mueller from the post. If Trump did so, the decision would then fall to Associate Attorney General Rachel Brand, the third-ranking official in the Justice Department....

Brand is a conservative who served in the department under President George W. Bush and doesn’t have a background in criminal prosecutions. If Trump fired Rosenstein, Brand might resign because she and Rosenstein were nominated together, have a close working relationship and went through their confirmation hearings as a team.

Dana Boente, the acting assistant attorney general for national security, would be next in line if Trump also removed Brand. Boente has carried out controversial Trump orders before; in January, when Acting Attorney General Sally Yates refused to defend the president’s travel ban against predominantly Muslim nations, Trump replaced her with Boente, who defended the ban.
Easy-peasy! Sean Hannity would spend the next week howling about Bill Clinton's travel office firings and all of #MAGA America would say the massacre was a blow for Freedom and Liberty and Draining the Swamp, proof that Trump belongs on Mount Rushmore.

A June Politico article says there are other possible ways for Trump to do this:
... there is another path Trump could take to remove Mueller, according to Yale Law Professor Akhil Amar. The regulations that govern the special counsel were issued by the Department of Justice and could be rescinded by the Department of Justice. If the regulations were rescinded, Trump would no longer be required to cite any cause in removing Mueller. Still, however, he would likely have to go through Rosenstein to rescind the regulation, a move Rosenstein would likely resist.
So? Fire Rosenstein. Or:
It’s possible that Trump could circumvent DOJ entirely and fire Mueller on his own. It’s not clear that Trump has any constitutional duty to adhere by a Justice Department regulation, said Saikrishna Prakash, a professor at University of Virginia Law School and former clerk for Supreme Court Justice Clarence Thomas.

“I don’t know how a rule of the Department of Justice can limit the president’s constitutional authority,” Prakash said, pointing to the president’s authority to remove officers of the executive branch, which could be interpreted to include a special counsel. “My view is the president can fire the special prosecutor without regard to what the rule says.”
Remember when we all thought Trump was a Hitler in the making? If that were the case, he'd have already done this, or worse. (The whole thing wouldn't even have gotten this far, after a polonium poisoning or two.) He still feels there are some limits to his power.

Maybe advisers he trusts have exaggerated the risk that Republicans in Congress will turn on him, and he believes them. That's the most likely explanation.

And maybe he's enjoying the battle. In his New York Times interview this week, Trump said that if the Mueller probe expanded beyond Russia and the election, that would cross a line for Trump. But at the end of the interview, there was this:
HABERMAN: Would you fire Mueller if he went outside of certain parameters of what his charge is? [crosstalk]

SCHMIDT: What would you do?


TRUMP: I can’t, I can’t answer that question because I don’t think it’s going to happen.
I think he believes he can intimidate Mueller. That may have been why he agreed to (or perhaps even suggested) the interview. That may be the point of the leaks to the Times and the Post. He is the alpha male, and they will cower before him! I think that's a fantasy he relishes.

He's clearly guilty of something. For some reason, he believes he can't shut down the special counsel investigation by brute force, even though he almost certainly could get away with it. He's trying to scare Mueller rather than crushing him. It's frightening enough, but it could be a lot worse.

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