By Daniel J. McLaughlin
As Robert Mueller's investigation into Russian interference in the 2016 presidential election - and whether there was collusion with the Trump campaign - heats up, it looks increasingly likely that the trigger-happy Donald Trump will look to fire the special counsel. Unlike his reality television days on the Apprentice, moving the same dismissal rate to the West Wing and its revolving back door, getting rid of Mueller is not as easy. The president cannot simply point his finger, and utter, "You're fired."
The White House seems to believe so. Press secretary Sarah Huckabee Sanders told reporters that the president has the legal authority to fire the special counsel, claiming “a number of individuals in the legal community and including at the Department of Justice” back this opinion. Trump has also publicly considered the option, asking "Why don't I just fire Mueller?" when responding to questions from journalists.
This would be an unprecedented move from the president. It was previously understood that he could not directly fire Mueller, but he could find a way to do it indirectly. To oust the special counsel, he could order acting attorney general for the Russia probe, Rod Rosenstein, to get rid of Mueller. Rosenstein, who is deputising for Jeff Sessions after the attorney general recused himself from the investigation, could turn down the order - and indeed, he has repeatedly said he would do so. Trump could then decide to fire Rosenstein and find a successor who is willing to obey the command.
This tactic, however, is risky. Trump could either get his own way - or it could cost him his presidency. All he needs to do is have a glance at the history books to be aware of this. Attempting to fire a special counsel helped Richard Nixon's presidency go "kaput" in the blink of a month, according to Politico. On October 12, 1973, a federal appeals court ruled that Nixon must surrender White House documents and tapes to Archibald Cox, the special prosecutor during the Watergate scandal.
Eight days later, on a day known as the 'Saturday Night Massacre', the president ordered attorney general Elliot Richardson to fire Cox. Richardson refused and then resigned. Nixon moved to the next in command, deputy attorney general William Ruckelshaus, to fulfill his command; he refused and resigned. He then ordered the third most senior official in the Department of Justice, solicitor general Robert Burk who eventually relented after considering his position. A court later ruled that his dismissal of Cox was illegal, and a new special counsel was appointed.
There is no federal law protecting the special counsel from the direct or indirect wrath of the president. However, senators want to change that with a bipartisan piece of legislation. The Special Counsel Independence and Integrity Act merges previous legislation proposed by the senators last year.
The four-page bill has two parts: first, it writes the Department of Justice's existing regulation on special counsels into federal law; and second, it sets up a legal mechanism for a special counsel to contest their dismissal. The bill requires that a special counsel can only be fired for "misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violation of policies of the Department of Justice".
If a special counsel is fired by the attorney general - or in this case, the acting attorney general - they would have to provide the reason for the dismissal in writing. The special counsel could contest this decision, and they would be allowed to seek relief from a special panel of three federal judges within 10 days of the dismissal. The judges would have to rule on the matter within 14 days - and any appeals would go directly to the Supreme Court.
According to the New Republic, the Special Counsel Independence and Integrity Act includes a provision that would require the Department of Justice to preserve the "staff, documents, and materials" from the investigation. The Department also cannot appoint a new special counsel whilst the dismissal is being contested - it would stop an official from "firing one special counsel and appointing one who could dismiss charges or offer plea deals before a court could intervene".
Contrary to what the White House and Donald Trump believe, firing a special counsel is not easy for the president to do. A bipartisan group of senators are trying to make it more difficult for Trump to sack Robert Mueller without good reason. But when has reason applied to this unprecedented president?