You’re Fired!

Flynn admitted lying to the FBI—a federal crime—about his phone conversations last December 29 with Russian ambassador Sergey Kislyak. He falsely denied that he had talked to Kislyak about Russia’s refraining from responding to the sanctions being imposed by the Obama administration and about help with delaying or defeating a pending U.N. Security Council resolution about Israel’s settlements program. In his plea agreement, Flynn promised to cooperate fully with the special counsel.

Signs that Jared Kushner may be next in Mueller’s sights include reports that he was involved in telling Flynn what to say to Kislyak about the sanctions and was the “very senior member of the Presidential Transition Team” who, according to the court papers, “directed Flynn to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.” Mueller’s investigators interviewed Kushner last month about Flynn’s contacts with the Russian government and a December 2016 Kushner-Flynn-Kislyak meeting.

Trump can certainly pardon Kushner if it came to it—and Don Jr.—but experts disagree on whether a president can constitutionally pardon himself. A self-pardon would provoke a bigger backlash and louder clamor for impeachment than any effort to fire Mueller. Trump seems unlikely to go the self-pardon route before the waning days of his administration. It is groundwork for firing Mueller that many think is being laid.

Since May, Trump has repeatedly trashed the criminal investigation into his campaign’s suspected collusion with Russia as a “witch hunt,” a “made-up story,” and a “hoax.” In recent days, conservative media outlets and politicians and various Trump allies have also begun asserting that Mueller and the FBI are biased against Trump and that they, along with the Justice Department, have dodged subpoenas by congressional Republicans that would have turned up such discrediting documents as anti-Trump texts from a top FBI investigator on the Mueller probe, Peter Strzok. (Adding to the conspiracy theories is that Strzok was previously one of the top figures in the FBI investigation of Hillary Clinton’s email server.) Mueller removed Strzok from his team last summer to avoid accusations of partisan bias. But the suspicions among Trump supporters are growing. In its lead editorial on December 5, the Wall Street Journal claimed that the special counsel “is too conflicted to investigate the FBI and should step down in favor of someone more credible.” The same day, Fox News’s Sean Hannity, one of the most vehement critics in the media of Trump’s perceived enemies, called Mueller “a disgrace to the American justice system” and said his team was “corrupt, abusively biased, and political.”

Flynn’s plea bargain and cooperation with Mueller suggest the possibility that the special counsel is developing allegations of criminality—such as complicity in Flynn’s alleged lies to the FBI—against figures at or near the highest levels of the Trump transition.

Trump fired Flynn as his national security adviser on February 13. The purported reason was Flynn’s false statement to Vice President Mike Pence that he had not discussed the sanctions with Kislyak in December. But Flynn’s “resignation” did not come until after the Washington Post had reported his discussion with Kislyak and not until 17 days after acting attorney general Sally Yates had warned White House counsel Don McGahn—who in turn told Trump—that Flynn had lied to Pence and was vulnerable to blackmail by Russia. Trump’s personal lawyer, John Dowd, has admitted that the president knew by late January that Flynn’s account of the Kislyak interview to the FBI had probably been false.

On February 14, Trump had an Oval Office meeting with FBI director James Comey. According to Comey’s sworn testimony (which Trump has contradicted), the president said to him: “I hope you can see your way to letting this go, to letting Flynn go. He is a good guy.”

Trump fired Comey in May and later told Russian officials in an Oval Office meeting that this had relieved “great pressure” from the Russia investigation. On December 3, Trump touched off renewed accusations of obstruction of justice when he tweeted that he had fired Flynn because “he lied . . . to the FBI” as well as to Pence. This amounted to an admission that Trump knew Flynn had lied to the FBI before the president’s alleged request to Comey about “letting Flynn go” and before Trump said in a February 16 news conference: “I don’t think [Flynn] did anything wrong.” Bizarrely, defense lawyer Dowd later claimed that he had drafted the self-damaging tweet for Trump.

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If Trump comes to feel threatened enough to try to fire Mueller and weather the backlash, he will find it much trickier as a legal matter than it was to fire Comey.

Comey served at Trump’s pleasure. But Mueller was appointed by acting attorney general Rod Rosenstein under a 1999 Justice Department regulation that limits the president’s power to remove him. (Attorney general Jeff Sessions has recused himself from the Russia investigation.) The regulation provides that a special counsel can be removed only by the attorney general—not the president—and only “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

Mueller is also protected by a much older general principle—reaffirmed by the Supreme Court in 2010—that when Congress has empowered a department head, such as the attorney general, to appoint his own subordinates, “it is ordinarily the department head, rather than the President, who enjoys the power of removal.” The president clearly could order Rosenstein to fire Mueller and could claim that the special counsel has a conflict of interest because of his longstanding, close professional relationship with Comey. But Rosenstein knew about that relationship and saw no conflict when he appointed Mueller. And he has assured Congress that absent “good cause,” he would refuse a Trump order to fire Mueller.

Such a refusal would end with Rosenstein resigning or being fired by the president. In that event, under the order of succession provided by Congress, associate attorney general Rachel Brand would become acting attorney general. It’s quite possible that Brand, an experienced Washington hand, would also refuse to fire Mueller. Trump could then proceed on down the Justice Department chain of command in the hope of finding someone willing to violate the regulation and fire Mueller—and, in the process, to do grave damage to his or her own professional reputation. This embarrassing charade would amplify calls for Trump’s impeachment.

Trump’s other option, perhaps better suited to his self-image, would be to tell Mueller personally, “You’re fired.”

But that, too, would be contrary both to the 1999 regulation and to the principle that only department heads can fire their own subordinates. Trump might avoid the first problem (but not the second), noted Neal Katyal in an op-ed for the Washington Post, if he ordered the special-counsel regulations repealed and then fired Mueller himself. (Katyal headed the Justice Department working group that wrote the 1999 regulation.)

Putting aside the resulting outcry and impeachment efforts in Congress, would that be the end of the criminal investigation? Legal experts have offered differing opinions.

Marty Lederman, a Georgetown law professor who held a high-level position in the Justice Department’s Office of Legal Counsel under President Obama, stressed on the Just Security blog that “the President himself cannot remove Mueller.” He cited both the principle that only department heads may remove their own appointees and the 1999 regulation, dismissing as weak the argument that the Constitution empowers the president to abrogate the regulation and then fire Mueller.

There’s a Watergate parallel here, with the famous firing of special prosecutor Archibald Cox—the “Saturday Night Massacre” of October 20, 1973. Lederman suggested that the reason “why Richard Nixon did not try to personally remove Archibald Cox” was that the president knew he lacked the power to do so.

Instead, Nixon ordered attorney general Elliot Richardson to fire Cox; Richardson refused and resigned; this made deputy attorney general William Ruckelshaus the acting attorney general; he, too, refused and resigned; and finally solicitor general Robert Bork, the next in the line of succession as acting attorney general—who unlike Richardson and Ruckelshaus had not promised Congress that he would protect the special prosecutor—fired Cox. Bork then appointed Leon Jaworski to replace him.

Josh Blackman of the South Texas College of Law argued on the Lawfare blog that, contrary to Lederman, Trump has the constitutional authority to “revoke the regulation itself and in so doing obliterate Mueller’s whole office. . . . The protection against removal is ultimately a political one, not a regulatory or legal one.”

Blackman argued that the detailed history showed that Richardson, Ruckelshaus, and Bork all assumed that Nixon had the constitutional power to fire Cox personally, despite the regulation then in force that Cox could be fired only by the attorney general and only for “extraordinary impropriety.” That said, Blackman acknowledged that to the public at large, “the termination of Mueller would amount to an admission of guilt and obstruction of justice.”

Jack Goldsmith, who headed the Office of Legal Counsel under President George W. Bush, wrote on Lawfare that there are “good constitutional arguments” both for and against the idea that Trump has the power to “blow through the regulation and fire Mueller himself.”

In any event, thought Goldsmith, if Trump did that, “I would predict massive resignations within the DOJ and White House. . . . Congress would rise up quickly to stop the President, and the pressure on the cabinet would be enormous as well. If I am naïve in thinking this, then we are indeed in trouble.”

Amidst the political firestorm, would Mueller take Trump to court to challenge the legality of the firing? The answer is unclear. But he would be strongly urged by many colleagues and friends that it was his duty to the rule of law to fight Trump in court—especially if Trump tried to fire Mueller’s entire staff, leaving allegations of presidential criminality hanging over the nation with no resolution in sight.

Purely as a legal matter, a Mueller lawsuit would get little help from the 1999 regulation, which states that it “may not be relied upon to create any rights, substantive or procedural, enforceable [in court] by any person or entity.” In other words, the regulation is not judicially enforceable. Mueller might thus base any lawsuit mainly on the older principle that because an attorney general appointed Mueller, only an attorney general can remove him.

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The high stakes of any Mueller-Trump lawsuit, together with the legal uncertainties debated by Lederman, Blackman, and Goldsmith, might well propel the case quite rapidly through the federal district and appeals courts and into the Supreme Court.

It could lead to a historic decision, reminiscent of United States v. Nixon in 1974 or Clinton v. Jones in 1997. The former ordered President Nixon, by an 8-0 vote, to turn his White House tapes over to Watergate special prosecutor Leon Jaworski and doomed his presidency. The latter, a unanimous decision in the Paula Jones sexual harassment lawsuit, rejected Clinton’s claim that he could not be sued while he was president. It would indirectly force him to testify about what he did with Monica Lewinsky and lead, in turn, to his impeachment in 1998 for lying under oath and obstructing justice.

Fueling the detailed arguments in a Mueller-Trump battle would be a longstanding dispute pitting conservative scholars and jurists who believe the Constitution empowers the president to fire any federal prosecutor or other executive branch official at will against more liberal jurists who see restrictions on the firing power as essential to presidential accountability.

In a third historic win for champions of presidential accountability, the Court upheld in Morrison v. Olson the 1978 Ethics in Government Act provision sharply restricting presidential power to remove court-appointed “independent counsels.” (The 1988 decision was 7-1, with the late Antonin Scalia offering a passionate dissent.) But the 1978 provision lapsed in 1999, amid a bipartisan consensus that it had created incentives for overzealous prosecution. The 1999 Justice Department regulation under which Rosenstein appointed Mueller is less potent. But the regulation is not nothing. And the Court might reinvigorate, as a valuable check on presidential arbitrariness, the principle that a chief executive who cannot persuade his own political appointees to fire a subordinate may not go over their heads and do the firing himself.

How might the Court rule in a Mueller-Trump case?

It would not be surprising to see the four more liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) side against Trump. It’s also quite possible, if less likely, that all four of the more conservative justices (John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch) would side with Trump. That would leave Justice Anthony Kennedy in his accustomed role of casting the deciding vote. Not many Kennedy-watchers would bet on his siding with Trump.

But it’s also quite possible that the justices—especially if they were closely divided on the question—might dust off the so-called “political question doctrine” to rule that the Court should leave the fate of the Mueller investigation, and its impact on the Trump presidency, to the political process. That would of course include the impeachment process, which would be well under way by the time any Trump effort to fire Mueller came before the Supreme Court.

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Robert Mueller has surely long since begun drafting the confidential report that the 1999 regulation requires him to provide at the conclusion of his work to the acting attorney general. Political pressure will likely see it then shared with Congress and the public.

If it comes down to little more than ordering or encouraging Flynn to lie to the FBI, and gratefully welcoming Russian hacking and dissemination of dirt about Hillary, then the Mueller investigation will probably end with no blockbuster prosecutions and the calls for impeachment will fade.

If, on the other hand, the evidence revealed by Mueller and congressional investigators were ugly enough to turn even most Republicans against Trump, he might be on his way out, by impeachment and removal. Then it would be time to ponder the constitutionality of the self-pardon.

Stuart Taylor Jr., a Washington, D.C.-based writer and lawyer, is the coauthor, with KC Johnson, of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.