Newsmax CEO Chris Ruddy set off a firestorm Monday when he suggested that President Donald Trump might be contemplating firing special counsel Robert Mueller, who’s overseeing the FBI’s Russia investigation.
Other Trump surrogates, including former House Speaker Newt Gingrich, have stepped in to say they don’t believe Trump would take such a potentially explosive step. But could he? Legal experts say yes.
The regulations governing independent investigations makes clear that the special counsel can be removed “only by the personal action of the Attorney General.” In this case, because Attorney General Jeff Sessions has recused himself from the Russia probe, the responsibility would likely fall to deputy attorney general Rod Rosenstein, who Trump could order to fire Mueller. If Rosenstein refused, Trump could fire him and continue down the line until a DOJ official acquiesced.
The situation is not unprecedented. In 1973, amid the Watergate scandal, President Richard Nixon ordered Attorney General Elliot Richardson to fire special prosecutor Archibald Cox. Richardson refused, and resigned. Nixon then ordered deputy attorney general William Ruckelshaus to carry out the firing. He, too, refused and resigned. The next in line was solicitor general Robert Bork, who carried out Nixon’s orders and fired Cox.
“That was the beginning of the end of Mr. Nixon,” said Paul Rothstein, a law school professor at Georgetown who affirmed the legality of a hypothetical Mueller firing, but noted the “tremendous political repercussions.”
Rosenstein told senators on Tuesday that he would not assent to the firing of Mueller without cause.
But 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 The regulations that govern the special counsel were issued by the Department of Justice and could be rescinded by the Department of Justice. If the regulations were rescinded, Trump would no longer be required to cite any cause in removing Mueller.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.
If Trump moves to fire Mueller, then, it is likely Mueller won’t be the only official heading for the exits. And a slew of resignations or firings at DOJ in order to get rid of Mueller would only deepen the sense of crisis.
The political price for the removal — however accomplished — would be steep, and Democratic Rep. Adam Schiff suggested it would lead Congress to re-establish an independent counsel statute and reappoint Mueller. Such a move would, of course, require the support of Republicans.
Republican leaders have praised Mueller, a former FBI director, and urged the White House to let him do his work leading the probe into Russian interference in the election. “I think the best advice is to let Robert Mueller do his job,” House Speaker Paul Ryan said Tuesday when asked.
Darren Samuelsohn and Josh Gerstein contributed reporting.