Jurisprudence

It’s Too Late for a New “Saturday Night Massacre”

Going on a firing spree at this point can’t save Trump.

President Donald Trump speaks during a meeting on agriculture with governors and members of Congress at the White House in Washington on Thursday.
President Donald Trump speaks during a meeting on agriculture with governors and members of Congress at the White House in Washington on Thursday.
NICHOLAS KAMM/AFP/Getty Images

A version of this piece first appeared on the blog Impeachable Offenses.

In the hours following Donald Trump’s infuriated reaction to the FBI’s search of his lawyer’s office, the media crackled with speculation that the president would fire special counsel Robert Mueller, Deputy Attorney General Rod Rosenstein, Attorney General Jeff Sessions, FBI Director Christopher Wray, or perhaps all four together. It hasn’t happened yet. And while nothing is certain with our increasingly erratic chief executive, if he retains both a shred of rationality and advisers with some knowledge of the federal criminal system and the capacity to make their boss face reality, there will be no firings. And if there are, they won’t stop the hounds baying at the president’s heels.

Trump presumably wants to fire those he perceives to be his tormenters in order to make the torment—the investigations they supervise—stop. But the simple truth is that Justice Department investigations involving Trump, his campaign, his family, and his businesses have now proceeded so far that, while they could be hindered or delayed, they cannot be stopped. That Trump might still think that a few firings would achieve that end would only show once again how little he understands about the federal criminal justice system and the professionals who serve it.

Trump’s most well-known problem, of course, is that despite his press secretary’s confident assertions to the contrary, he cannot fire Mueller directly. Under Justice Department regulations, a special counsel can be “removed from office only by the personal action of the Attorney General,” or in this case, the acting attorney general, Rod Rosenstein. So to get to Mueller, Trump would have to fire Rosenstein and then put someone in his place willing to axe Mueller.

But the Senate would not confirm an obvious hatchet person as a permanent replacement for Rosenstein. So Trump would have to begin working his way down the DOJ line of succession, ordering Mueller’s removal and then firing anyone who refused until he found someone willing to be this generation’s Robert Bork (who, as solicitor general, complied with President Richard Nixon’s order to fire Watergate special prosecutor Archibald Cox). And it is still, admittedly, possible that he could find someone pliable enough to at least consider firing Mueller.

But Trump’s other problem is that firing Mueller cannot, by itself, stop the investigations run by Mueller’s office. Mueller has already filed multiple cases. Some of them, like Paul Manafort’s, remain to be tried. Mueller’s office also employs or supervises dozens of prosecutors and investigators who are actively investigating other crimes and defendants. He has collected thousands of documents and hundreds of witness interviews and presented reams of grand-jury testimony. To stop all that—and to bury the results so they no longer threaten Trump—would require Trump’s chosen executioner not merely to fire Mueller but to order the immediate cessation of all the investigative activity being carried on by Mueller’s office and the immediate destruction or sealing of all the information they had gathered.

That won’t happen. For two reasons.

First, it is extremely doubtful that Mueller’s prosecutors and agents would obey an order shutting and sealing their investigations, particularly if given for no better reason than that the president (who is a subject of their inquiry) said so. There is no legal basis for such an order. More to the point, an order to both close and suppress the results of Mueller’s investigations would itself be a plain case of obstruction of justice under either Title 18 U.S.C. 1503 or 1512.

Second, no rational Rosenstein replacement, no matter how deeply in thrall to Trump, would order Mueller’s work both stopped and sealed. Any person who gave such an order would, at one stroke, commit career suicide and become a criminal target himself.

From Trump’s perspective, the rosiest scenario after Mueller’s firing would be: (a) appointment of a replacement for Mueller somewhat more tractable to the president’s wishes, or (b) a dispersal of Mueller’s staff and a transfer of their cases and investigations to regular U.S. attorney’s offices that would carry on the work. Either might slow things down, but the investigations would still be run by career prosecutors and agents who would not simply walk away.

Moreover, the part of the investigation that Trump now apparently most fears—the result of the search through his lawyer’s office—is already outside the special counsel’s bailiwick and is being pursued by the U.S. Attorney’s Office for the Southern District of New York. Neither the New York prosecutors nor the FBI itself, which has a large measure of independent investigative authority, will stop so long as there are grounds to believe federal crimes may have been committed.

Trump’s decision to hire a new law firm to intervene in the process of reviewing the material seized from Cohen’s law office strongly suggests that, at least for the moment, he’s been talked out of a new “Saturday Night Massacre.” If he was about to try to force a shutdown of all federal investigations into his affairs, it seems unlikely that he’d be messing around with a procedural move that, even if successful, will only slow down the New York investigation.

In short, while a DOJ firing spree might provide Trump a moment of satisfying catharsis, it will not resolve his legal problems. And that hard reality may slowly be seeping into the president’s agitated consciousness.

At this critical juncture in his life, Donald Trump confronts a phenomenon with which he has never before had to reckon—the principled dedication of the men and women of the Department of Justice. The “deep state,” if you like. Though individually subject to all the flaws of any professional assemblage, their institutional allegiance is to no man and no party, but to the vigorous and impartial enforcement of the law. If Trump has, as he says, done nothing wrong, he has nothing to fear. But it’s now too late to prevent the Justice Department from following the evidence wherever it may lead.