A tale of two “certainly”s:
Q: Does the President believe he has the power to fire Special Counsel Robert Mueller? Does he believe that’s within his power?
Sarah Huckabee Sanders: [He] certainly believes he has the power to do so.
[Press briefing on Tuesday.]
The President has certainly no power to remove [an inferior officer appointed by a Department Head].
In re Hennen, (1839).
President Donald Trump claims to “believe” countless things that are pure fiction or bunkum. Perhaps this is one more (although I’d be shocked if White House counsel Don McGahn has actually advised Trump that he has the authority to remove special counsel Mueller).
No matter: He does not have such power, as I have explained in previous posts. Indeed, it’s not even a (seriously) contested question, nor does it depend upon the continued existence of the DOJ regulation, 28 CFR 600.7(d), which only solidifies the point by providing that a special counsel appointed from outside the Department of Justice (as Mueller was) “may be disciplined or removed from office only by the personal action of the Attorney General.” The (Acting) Attorney General, Rod Rosenstein, appointed Mueller pursuant to 28 USC 515, which assigns the attorney general that power of appointment. It has been settled since at least the first great congressional debate on removal, in 1789, that “as a constitutional principle the power of appointment carrie[s] with it the power of removal”—a “rule of constitutional and statutory construction” that was “then generally conceded, [and] has been recognized ever since.” Those quotations are from Chief Justice William Howard Taft’s opinion in Myers v. United States (1926)—perhaps the high-water mark of Supreme Court solicitude for the president’s authority on matters of removal. (Congress can supersede the “power-of-removal-follows-power-of-appointment” rule by enacting a law giving the removal authority to someone other than the appointing authority—as it did under the Independent Counsel statute at issue in Morrison v. Olson—but Congress hasn’t done so here.)
That understanding did not end in 1926. The Supreme Court, per Justice John Roberts, confirmed the “removal-follows-appointment” rule in 2010 in response to an argument that the president must have authority to remove such inferior officers. And here’s the Department of Justice’s understanding of the question, from a brief filed in that case by Solicitor General Elena Kagan on behalf of the United States:
[T]his Court has never held that the President must have direct removal authority over inferior officers. … To the contrary, in discussing the removal of district court clerks in Ex parte Hennen … , the Court reasoned that the power to remove an inferior officer who was not appointed by the President resided solely with the appointing authority: “the President has certainly no power to remove.” … And the Court has repeatedly recognized that the power to remove an inferior officer need not be held by the President when Congress has lawfully vested the appointment of that officer in another official. … Thus the Judge Advocate General, not the President, had the power of removal in Edmond, and the Attorney General, not the President, had the power of removal in Morrison.
Think about it: If the president had the authority to remove a special counsel appointed by the attorney general, Richard Nixon could have—and would have—removed Archibald Cox himself and thereby avoided the “massacre” of Saturday night, Oct. 20, 1973, in which he had to (effectively) remove Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus in order to have Cox fired. (Indeed, although it’s possible there’s some aberrant example out there, I am unaware of any case in all of American history in which a president has attempted personally to remove an inferior officer appointed by someone other than the president himself.)
Accordingly, only Rosenstein can remove special counsel Mueller and absent some unthinkable change of affairs, he won’t do so. In order to have Mueller removed, therefore, Trump would at a minimum need to first remove either Rosenstein or Attorney General Jeff Sessions, and replace that officer with someone who is willing to remove Mueller even in the absence of any “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,” thereby reneging on the commitment that Rosenstein made to apply that regulatory standard when he appointed Mueller.
I am very doubtful Trump would be able to find anyone eligible to be AG or DAG who would be willing to do that dirty work—especially not after a removal of Sessions and/or Rosenstein and the political outrage and tumult that would inevitably follow in its wake. But make no mistake: That is what would be required. And even then, the investigation would only revert to the authority of FBI Director Christopher Wray, who would be likely to take up Mueller’s mantle and continue his investigation vigorously. Which is another reason why we’re unlikely to see Trump try to effect Mueller’s removal.
The greater risk is that Trump would remove Rosenstein or Sessions, and replace that officer with someone who would much more significantly clamp down on, and refuse to approve, investigative, prosecutorial, and/or reporting actions that Mueller (and I suppose, those in charge of the Michael Cohen investigation) propose to take. If Trump removes Rosenstein (which he can do because he appointed Rosenstein), Solicitor General Noel Francisco would exercise the authorities of the deputy AG—and the AG’s authorities in the Russia investigation. I doubt (or at least I hope) that Francisco would not be party to such a strategy—that is to say, that he would not agree to impose constraints on Mueller that Rosenstein would not. Whether Trump could find another Senate-confirmed officer to do so—and what the fallout would be if that occurred—remains to be seen.
More from Just Security:
Support Our Voting Rights Coverage
In 2018, we’re turning our attention to the cornerstone of our democracy: the right to vote. Slate’s journalists will be offering expanded coverage of gerrymandering and voter suppression, investigating key legislative battles and court cases on the state and federal level. They’ll also offer new tools to help readers understand how the electoral sausage gets made.Join Slate Plus