Jurisprudence

Could Trump Have “Directed” Robert Mueller’s Removal?

The ins and outs of firing the special counsel.

US President Donald Trump waves before boarding the Air Force One ahead of his departure from Zurich Airport in Zurich on January 26, 2018, after attending the World Economic Forum (WEF) annual meeting in Davos. / AFP PHOTO / Nicholas Kamm        (Photo credit should read NICHOLAS KAMM/AFP/Getty Images)
President Donald Trump waves before boarding the Air Force One ahead of his departure from Zurich on Friday.
Nicholas Kamm/Getty Images

There’s a good deal of ambiguity in the New York Times’ new story about the president’s effort to “direct” the removal of special counsel Robert Mueller last June. Who did he direct, for starters? And how did White House Counsel Don McGahn respond? On what grounds did McGahn allegedly “disagree[] with the president’s case”? And why didn’t the president himself then proceed to do something to effect Mueller’s removal after McGahn (reportedly) refused to ask DOJ to fire him?

The Times reports that “the president began to argue that Mr. Mueller had three conflicts of interest that disqualified him from overseeing the investigation,” and that “[a]fter receiving the president’s order to fire Mr. Mueller, the White House counsel, Donald F. McGahn II, refused to ask the Justice Department to dismiss the special counsel, saying he would quit instead.” For what it’s worth, the Washington Post reports that McGahn did not “say he would quit” to the president himself: “McGahn did not deliver his resignation threat directly to Trump, but was serious about his threat to leave, according to a person familiar with the episode.” This suggests the president backed down based only upon the advice/arguments on the merits that McGahn, and perhaps others, offered him—not because of any White House counsel resignation threat. But who knows? In any event, McGahn’s (alleged) refusal to comply with a presidential “direction” carries with it at least the implied threat to resign.

The Times continues:

Mr. McGahn disagreed with the president’s case and told senior White House officials that firing Mr. Mueller would have a catastrophic effect on Mr. Trump’s presidency. Mr. McGahn also told White House officials that Mr. Trump would not follow through on the dismissal on his own. The president then backed off.

If this story is entirely accurate (never a sure thing, of course—Schmidt and Haberman are very reliable, but their sources may not have been precise or well-informed about precisely what occurred), it appears Trump directed McGahn to “ask” the “Justice Department”—presumably Deputy Attorney General (and acting attorney general for the Russia investigation) Rod Rosenstein—to remove Mueller. The White House counsel has no power to “direct” the attorney general to do so—“asking” is the most he can do. And although the Times story says Trump “order[ed]” McGahn “to fire Mr. Mueller,” of course McGahn has no such authority.

McGahn never did so—he didn’t ask Rosenstein to remove Mueller on conflict-of-interest grounds. Why not? At the very least, because McGahn concluded—correctly—that such an effort would, if successful, “have a catastrophic effect on Mr. Trump’s presidency.” Among other things, Mueller’s removal on conflict-of-interest grounds, even if had occurred, would not have ended the investigation—indeed, it probably would have resulted in appointment of a new special counsel. And it likely would have happened only after a series of DOJ resignations akin to the Saturday Night Massacre.

We should probably assume—although the Times does not say—that McGahn told Trump himself that the firing, or even asking DOJ to remove Mueller, would be catastrophic for the presidency. The story does not say, however, (i) whether McGahn also told Trump that DOJ was unlikely to actually fire Mueller, even if asked; and/or (ii) whether McGahn advised Trump about whether it would, or would not, be lawful for Rosenstein to remove Mueller on the grounds that the president invoked.

Would it have been lawful for Rosenstein to remove Mueller on the grounds invoked by Trump? Well, if Rosenstein concluded that Mueller actually did have a conflict of interest, then yes, that would be sufficient grounds for removal—28 CFR 600.7(d) says so expressly. It’s very unlikely, however, that Rosenstein would have agreed that Mueller has a conflict of interest based upon the facts cited by the president, which were the following:

First, [Trump] claimed that a dispute years ago over fees at Trump National Golf Club in Sterling, Va., had prompted Mr. Mueller, the FBI director at the time, to resign his membership. The president also said Mr. Mueller could not be impartial because he had most recently worked for the law firm that previously represented the president’s son-in-law, Jared Kushner. Finally, the president said, Mr. Mueller had been interviewed to return as the FBI director the day before he was appointed special counsel in May.

And therefore, if McGahn had “asked” Rosenstein to remove Mueller, Rosenstein probably would have refused to do so. In which case, Mueller would not have been removed.

The Times story leaves the suggestion that, in such a case, the president himself would have been able to remove Mueller. (“Mr. McGahn also told White House officials that Mr. Trump would not follow through on the dismissal on his own.”) As I’ve explained in a pair of posts, however, that’s not correct: As a matter of statutory authority (see the Ex parte Hennen line of cases) and the regulation itself (which is operative by virtue of the terms of Rosenstein’s appointment of Mueller), only the appointing officer can remove the special counsel. Therefore, if Rosenstein concluded there were no disqualifying conflicts and refused to fire Mueller, the president could only effect Mueller’s firing if he himself removed Rosenstein (or forced his resignation) and replaced him as deputy attorney general (and as acting attorney general for the Russia investigation), under the Vacancies Reform Act, with another officer already Senate-confirmed to some other office, who would be willing to remove Mueller on such conflict-of-interest grounds.

And it’s not obvious that there are any such currently sitting officers who would be willing to do so, especially in the wake of the outrage that would follow Rosenstein’s removal or resignation. Perhaps that’s the scenario to which McGahn was referring when he allegedly “told White House officials that Mr. Trump would not follow through on the dismissal on his own”–namely, that the president would not do so because he almost certainly could not do so, at least as a practical matter, absent a series of unlikely (and convulsive) events.

One final thought, for what it’s worth: The substance of the story isn’t very surprising, of course. To my mind, then, the real importance of the story is that someone decided to leak it now. Why? To put McGahn in a good light? (If so, why now?) Because he or she or they sense(s) that it’s soon going to be necessary to distance McGahn from Trump? (And, if so, why?)

More from Just Security:

On Bannon’s Testimony and Executive Privilege
Why It’s Far Worse for Trump to Fire Rosenstein Than to Fire Mueller

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