June 13, 2017
HERE'S HOW PARTISANSHIP WORKS:
If Trump Fires Mueller (Or Orders His Firing) (Jack Goldsmith, June 13, 2017, Lawfare)
By design, the regulations curb the special counsel's independence but in narrow respects offer the special counsel some protective insulation. The critical provision on both points is ยง 600.7. On the one hand, this provision makes clear that the special counsel is subject to all of "the rules, regulations, procedures, practices and policies of the Department of Justice" and that the Attorney General may not only compel the special counsel to justify "any investigative or prosecutorial step" but also may countermand the special counsel on a proposed course of action so long as he notifies Congress of the conflict. On the other hand, the regulations also provide a measure of protection by setting three specific terms for special counsel's removal: the special counsel can be removed only (1) by the Attorney General, (2) for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies," and (3) in writing, which must include "the specific reason" for special counsel's termination.This raises several questions of interpretation, which are interlinked.The first issue is what supposed misconduct might constitute the basis for Mueller's removal. The standard for firing special counsel, remember, is "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies." It is hard to see what Mueller has done that would warrant termination under this standard. Trump might claim that Mueller has a conflict of interest because the firm he left represents the Trump family is some matters. But the Justice Department's own ethics experts ruled that there is no conflict and "that Mr. Mueller's participation in the matters assigned to him is appropriate." Perhaps Trump would claim that Mueller has a conflict because Comey and he are friends and "brothers in arms," but it is hard to see how this constitutes a conflict in the investigation of the Russia matter. Maybe Trump will come up with some other reason under the regulation.Second, under the regulation, the decision to terminate lies not with Attorney General Jeff Sessions but with Deputy Attorney General Rod Rosenstein, who is the acting attorney general for purposes of the Russia investigation. So in the first instance, presumably, Trump could order Rosenstein to fire Mueller. Rosenstein would then have to decide whether he believed the reasons Trump gave were adequate under the regulation. If so, he could carry out the order. If not, and if he refused to do it, Trump could fire him--or he might simply resign in the face of Trump's order (more on which below).Third, if Rosenstein resigns, that raises a question of who becomes the acting attorney general. Succession in the Department is, to a point, outlined by statute: where the attorney general and deputy attorney general are unable, the associate attorney general "shall act" as attorney general. Otherwise the attorney general "may designate" the solicitor general and the assistant attorneys general, "in further order of succession," to act as attorney general. That means it could go down the line until an assistant attorney general did not resign and instead carried out the President's order. (Succession is complicated by the fact that, after Rosenstein, there are only two other confirmed officials in DOJ: Associate Attorney General Rachel Brand, and Acting Assistant Attorney General for the National Security Division Dana Boente, who was previously confirmed to be the U.S. Attorney for the Eastern District of Virginia. A tad more on this below.) If the officers after Brand also resign, then an executive order on DOJ succession recently promulgated by Trump would control. (This barely noticed executive order would potentially assume great significance if Trump fires Mueller.)Fourth, there are a number of hard questions about whether Trump could circumvent the regulations--either ignore them or abrogate them--and fire Mueller himself. The argument at bottom is that all executive power is vested in the President; law enforcement is at the core of Executive power; there is no contrary statutory directive, as in Morrison v. Olson; and the Special Counsel rule is just a regulation promulgated by the Executive Branch, not a law, and is thus ultimately subject to change or disregard by Executive order. On the other hand, there is this important point made in Nixon v. United States concerning Special Prosecutor Jaworski and the regulation then in force, 38 Fed.Reg. 30739, which required "extraordinary improprieties" for his removal:So long as this regulation is extant it has the force of law. In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), regulations of the Attorney General delegated certain of his discretionary powers to the Board of Immigration Appeals and required that Board to exercise its own discretion on appeals in deportation cases. The Court held that so long as the Attorney General's regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations. Service v. Dulles, 354 U.S. 363, 388 (1957), and Vitarelli v. Seaton, 359 U.S. 535 (1959), reaffirmed the basic holding of Accardi.
Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so. So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it. Moreover, the delegation of authority to the Special Prosecutor in this case is not an ordinary delegation by the Attorney General to a subordinate officer: with the authorization of the President, the Acting Attorney General provided in the regulation that the Special Prosecutor was not to be removed without the "consensus" of eight designated leaders of Congress (emphasis added).In the Watergate context President Nixon never sought to alter or circumvent the relevant regulations, and thus they remained in force and binding. But what if Trump issued a directive that fires Mueller and abrogates or ignores the Special Counsel regulations, including the authority to appoint and terminate, and the limiting criteria for termination? There are good constitutional arguments in support of this possibility. There are also countervailing arguments grounded in the principle that only the agency head that appoints the officer, and not the President, can remove the officer. This principle is reflected in the regulation itself, and is consistent with Nixon's approach to the Special Prosecutor in Watergate.
Last week, the Trumpies were saying he wouldn't have truly obstructed justice unless he fired Mueller, not just Comey. This week they say he should fire Mueller.
Posted by Orrin Judd at June 13, 2017 5:22 AM