Jurisprudence

What Happens to the Evidence if Trump Goes on a Firing Spree?

Backup options are likely already underway.

Michael Cohen leaves the United States District Court Southern District of New York on April 26 in New York City.
Michael Cohen leaves the United States District Court Southern District of New York on April 26 in New York City.
Spencer Platt/Getty Images

This week cranked up the pressure on Donald Trump on multiple fronts. On Tuesday, the New York Times published a summary of questions Robert Mueller’s team had previewed to the president’s lawyers, revealing the breadth and depth of the investigation, which had multiple questions about some of Trump’s inner circle. During a flurry of interviews on Wednesday night and Thursday morning, Rudy Giuliani gave prosecutors several gifts in the areas of potential campaign finance violations and obstruction of justice. And lost in this storm, former Trump aide Michael Caputo, after being interviewed by prosecutors on Wednesday, told the media: “It’s clear they are still really focused on Russia collusion. They know more about the Trump campaign than anyone who worked there.”

Two things seem increasingly apparent: Mueller’s team has collected significant evidence, and is getting closer and closer to Trump. Meanwhile, the Southern District of New York will soon be sifting through a mountain of evidence collected from the Michael Cohen raid that seems likely to incriminate the president on other fronts. But as Mueller and SDNY prosecutors get closer to Trump, the pressure will ratchet up on the president in a way that might make him more likely to try to sabotage the investigation with a series of firings.

I’ve heard many people ask, “What happens to all the evidence—the documents, the interviews—if Trump fires Mueller, et al.?” The key to this story might not actually be inside the DOJ. It could be the extent to which the DOJ has been coordinating and sharing information with state prosecutors.

Trump would have to fire many people to keep this evidence from the light of day. He’d have to start with firing some combination of Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, and maybe more. Whoever replaced them would in turn have to shut down the SDNY probe and the Mueller investigation. This would likely mean more firings. Keep in mind that Sessions has reportedly declined to recuse himself from the Michael Cohen investigation, and refused in testimony last month to state his recusal status. I have written that the decision by Rosenstein and Mueller to refer the case to the U.S. District Court for the Southern District of New York was a calculated risk, indicating that they wanted to spread the investigation to other prosecutors as a hedge in case Trump fired Mueller. In doing so, they appeared to be optimistic that Sessions wouldn’t impede this investigation once it was back under his ambit at “main DOJ.”

If Sessions won’t do this work, then Trump might find someone who will, just as Richard Nixon found Robert Bork to do the work of firing special prosecutor Archibald Cox. Trump has reportedly ordered Mueller’s firing once or twice already. This process would be messy, but conceivably, Trump would cite the rejected and wrong unitary executive theory as constitutional grounds to demand evidence be buried.

As I’ve written before, the way out of this DOJ mess would be state prosecutors. Not only is it permissible for federal prosecutors to share evidence with state prosecutors; it is standard, especially in multi-jurisdiction organized crime cases. And frankly, this case has become an organized crime case. Keep in mind that Mueller was reportedly in close contact with New York Attorney General Eric Schneiderman last August, around the time there was speculation Trump was planning to fire Mueller. And keep in mind that Schneiderman has filed more than 100 lawsuits against the Trump Organization and so has open investigations into Trump’s various alleged frauds. And Schneiderman was already contemplating state prosecutions when he called for an important change in New York criminal procedural law around the issue of double jeopardy to make sure Trump’s pardons wouldn’t allow him to obstruct justice here, as I encouraged the state of New York to do in a Slate piece.

The bottom line is that there is ample reason to think Mueller has already shared key evidence with New York prosecutors. The DOJ has a guidance memo authorizing the coordination of prosecution with state officials sharing evidence, including a consideration of “the extent to which state and federal governments are part of a team, are participating in a joint investigation, or are sharing resources.”

The DOJ has other policies for coordinating prosecutions with state officials, known as the “Petite Policy,” to hand cases to state prosecutors “to promote efficient utilization of Department resources, and to promote coordination and cooperation between federal and state prosecutors.”

The DOJ also has the power to appoint state prosecutors as special assistant U.S. attorneys, who may prosecute cases in federal court. The Intergovernmental Personnel Act authorizes the head of a federal agency to assign federal personnel to states or localities “for work that [he or she determines] would be of mutual concern to [both parties].” The DOJ also allows agreements, called memoranda of understanding, or MOU’s, between law enforcement agencies, sometimes including state agencies, to cooperate and share information.

In 2010, federal prosecutors and Rhode Island state officials collaborated on drug crimes under such an arrangement. As the Heritage Foundation has noted, federal, state, and local law enforcement have cooperated under the Organized Crime Drug Enforcement Task Force and the National Infrastructure Protection Plan.

Considering how Mueller and Rosenstein have known for a long time that they could be fired at any time, they have surely contemplated such a backup plan. One has to imagine that they have created an MOU with state prosecutors and a highly secure document sharing system. The documents in those shared files may hold the fate of this administration.