I recently wrote an article expressing the view that President Trump being under criminal investigation removes the cover Trump might have had to get rid of Special Counsel Bob Mueller, and greatly increases his political and legal jeopardy if he did so.
What I didn’t say, as several readers pointed out, was that he won’t do it anyway.
I think he will, despite the heightened risk.
Trump doesn’t have legal authority to simply fire the Special Counsel. Under the existing Department of Justice regulations, which have the force of law, the power to fire the Special Counsel resides with the Attorney General, or his Deputy in a case, as here, where the Attorney General is recused.
But that doesn’t mean that the President lacks the tools he needs to get it done. There are several roads to that end if the President wants to take them.
Some commentators have suggested that since the Department of Justice is within the Executive Branch of government, and the President has constitutional authority over that branch, he can simply rescind or change the DOJ regulations and give himself the power to fire the Special Counsel.
That would not be as easy as it sounds. Administrative rule-making is a somewhat clumsy process, generally involving legal review, publication in the Federal Register and a period for public comment. A President cannot simply establish new Justice Department rules with the wave of a pen.
Even if he could, a rule giving the President the power to fire a Special Counsel wouldn’t be a very attractive option for Trump. The last thing he wants is to set up a situation where he is personally accountable for the firing.
Why take personal responsibility when you can get it done indirectly, under the cover of deniability?
Here are some possible scenarios:
· Rod Rosenstein, the Deputy Attorney General who currently has the authority to fire the Special Counsel, recuses himself and the next person in line fires Mueller. The whispering campaign that Rosenstein is conflicted because he participated in the Comey firing has already begun. Check out Trump’s tweet saying that he is now being investigated for firing the FBI Director by the guy who told him to do it. That would be Rod Rosenstein.
· Sessions fires Rosenstein and puts a more compliant Deputy in place.
· Same as above, except Rosenstein resigns because he is no longer willing to deal with the political pressure and the Trump circus.
· Sessions resigns, claiming he misses the Alabama pines. That allows Trump to name a new Attorney General who will not recuse himself from the Russian investigation, and who will terminate the Special Counsel investigation on the supposed grounds that it is a waste of time and taxpayer money. Enter Chris Christie, who has worn out his welcome as New Jersey’s Governor and has been shamelessly auditioning for a role in the Trump administration for months. Or somebody even worse. Rudy? Newt?
· Same as above, except Sessions doesn’t resign. Instead, Trump fires him for some trumped up reason. He lied to Congress? He’s not doing a good enough job? Crime rate isn’t going down fast enough, so he needs somebody with more law enforcement experience?
What all of these scenarios have in common is that Trump gets rid of the Special Counsel, but maintains at least the semblance of deniability.
“Why is the fake news press blaming me? I didn’t fire the Special Counsel. In fact, I wish he hadn’t been fired because he would have totally exonerated me. Totally! 100 percent!”
Trump is already well down the road toward executing a plan to get rid of the Special Counsel with deniability. He is setting the stage, and checking off the items on the to-do list.
Claim that the investigation is a witch hunt. Check. Trash Rosenstein. Check. Let it be known that he is furious with Sessions. Check. Start a whispering campaign that Mueller, despite his gold-plated reputation, is a conflicted, political actor out to get Trump. Check.
All of this begins the process of normalizing an upcoming act of blatant obstruction. If and when he does it, the public reaction will be furious.
But it will not be universal. Trump will still have his defenders.
And it will not necessarily be enough to impeach him, although it will place the issue of impeachment squarely on the table.
It will usher in the moment of truth for Congressional Republicans. Time to finally turn on Trump? Or reveal themselves, once and for all, as cowards.
For Trump, it will be just another high-risk, high-reward strategy.
Right in his wheelhouse.
Philip Rotner is a writer, attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow him on Twitter at @PhilipRotner.