It’s not so far-fetched to fear we are headed for a “Saturday Night Massacre Redux” only with a different cast of characters than Nixon brought us.
So how did we get to this sad, disturbing juncture in our history? Clearly it all pivots around one Donald J. Trump, our minority-vote president and his desire to end Robert Mueller’s investigation as Special Counsel.
[BACKGROUND: Although the terms “special counsel”, “special prosecutor” and “independent counsel” tend to be used interchangeably, they actually are not. Following the constitutional crisis caused by Nixon’s malfeasance, the Office of Independent Counsel was established by law in 1978 with the Ethics in Government Act. That law directed a three-judge panel from the US Court of Appeals in Washington, DC, to appoint the counsel or special prosecutor.
[That special prosecutor was typically given plenary powers with no checks or balances to contain it which led to far-afield investigations best exemplified by Ken Starr’s obsessive persecution of the Clintons that began as an investigation of a real estate deal, but exponentially exploded and segued to a stain on a little blue dress.
[There was bipartisan agreement those powers were too broad, and so the Independent Counsel Act was not renewed, and it expired in 1999. This led to the enactment of the Special Counsel Regulations, which empowers Robert Mueller’s investigation. Those regulations are spelled out here: https://www.gpo.gov/fdsys/pkg/CFR-2001-title28-vol2/pdf/CFR-2001-title28-vol2-part600.pdf ]
HOW CAN TRUMP GET RID OF MUELLER – OR AT LEAST STYMIE HIS INVESTIGATION
There are three broad forces that can interfere with Mueller’s investigation resulting in it either being terminated outright, or having it stymied to the point of futility: [1] Trump; [2] a high-ranking Justice Department official (generally the Attorney General, but since Jefferson Beauregard Sessions III has recused himself, it falls to the Deputy AG, Rod Rosenstein) or [3] Congress.
[1]
So, the main question is can Trump fire Mueller? The short answer is “Yes”. Under Article II of our Constitution, the president is given full plenary prosecution power, therefore all federal prosecutors work for the president.
But the special counsel regulations are very precise on how he or she can be removed:
The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General [or acting Attorney General] may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.
Of note is that if Rosenstein were to invoke that authority, the regulations also require him to notify the House and Senate Judiciary Committees as well as the ranking minority member of those committees. It’s prescient that that the authors of the Regulations included that proviso, which was specifically added to address the possibility that the majority party Chairpersons would be of the same party as the president, and either spineless enough or unwilling to act. Sound familiar?
And Deputy AG Rosenstein testified he would do so only for “good cause”. Based on his testimony, the possibility that Trump could convince him that Mueller had acted in such a manner to justify his removal was not only off the radar for Deputy AG Rosenstein, it wasn’t even conceivable to him.
Not only does Mueller enjoy an impeccable, bipartisan reputation and has not engaged in any inappropriate behavior that would justify his removal for “good cause” – but he was also granted a waiver by the Justice Department to lead the investigation despite a possible conflict of interest stemming from the fact that members of his law firm represent some of the people that are a focus of the investigation, including former Trump campaign manager Paul Manafort and Jared Kushner, the president’s son-in-law and senior adviser.
And although the Trump team is actively digging to try to find dirt on Mueller and his team, it’s universally agreed that Trump’s whining about campaign donations given by investigators to Democrats does not constitute a “conflict of interest” – and there’s case law to support that. Sorry, Donnie!
So, if Trump were to direct Rosenstein to fire Mueller, just as Nixon directed AG Elliot Richardson to fire Watergate Special Prosecutor Archibald Cox, Rosenstein would most likely resign like Richardson did, or Trump would fire him, like Nixon did with William Ruckelshaus, the next in line at the DOJ – which he has the power to do. And then just like Nixon, Trump could work his way down the chain of command to try to get to a toady like Nixon’s Robert Bork, who did fire Cox (and then that night was promised the next seat on SCOTUS by Nixon).
Or Trump, under the Federal Vacancies Reform Act of 1998, could appoint an interim attorney general – but it would have to be someone who was previously confirmed by the Senate for a Federal position.
(As noted, Sen. Chuck Schumer (D) has made it clear that Democrats will not allow Trump to use a recess appointment to insert a lackey AG to his liking, as Democrats will use the pro forma session option to prevent the Senate from going into the 10-day recess required to permit recess appointments.)
Or Trump could be brazen enough to actually repeal the Special Counsel Regulations and then fire Mueller himself. Back in 1999 when the regulations were put into place, that scenario was so unthinkable that is was not even addressed. But today with Trump, who has no moral rudder, it’s a distinct possibility.
[2]
This is the actual “Appointment of Special Counsel” statement by Deputy AG Rosenstein addressing Mueller’s appointment: https://www.justice.gov/opa/pr/appointment-special-counsel
And the actual enumeration of Mueller’s mandate:
https://www.justice.gov/opa/press-release/file/967231/download
It is widely believed that Mueller will broadly interpret the phrase “any matters that arose or may arise directly from the investigation.” Sorry, Donnie!
But it must be remembered that under the Special Counsel Regulations, the AG (or Deputy AG) retains the power to not only limit the scope of the investigation, but the Justice Department alone retains the right to either pursue the findings from Mueller’s investigation and bring criminal charges – or not. It’s hard to believe that Rosenstein would turn a blind eye if Mueller’s findings were compelling, but I no longer rule out any possibility.
[3]
Congress itself could seriously interfere – or prevent – the pursuit of criminal charges resulting from Mueller’s investigation by granting immunity to individuals in exchange for testimony. As you know, former national security adviser Michael Flynn has actively sought such immunity, and that could well make Flynn’s prosecution impossible.
If you recall, Oliver North was criminally convicted by an independent counsel during Reagan’s Iran-contra scandal. However, the US Court of Appeals for the District of Columbia Circuit threw out his conviction because Congress had granted him immunity. And even though that immunity didn’t directly cover action by the independent counsel, the court found that the special prosecutor could have benefited from “the fruits” of his testimony before Congress.
WHAT HAPPENS IF TRUMP SUCCEEDS IN GETTING RID OF MUELLER
The two most likely ways that Trump could get rid of Mueller is if he were able to find his “Bork” (now I know you’re thinking, given his anatomical … hmm, constraints related to his teeny, tiny hands, he already has problems finding his “Bork” – but let’s move on) in some form, and have him or her fire Mueller. The other is that he actually revokes the Special Counsel Regulations (which he theoretically could do) and fire him outright by himself.
One would hope that Rep. Adam Schiff (D) is correct that Congress would immediately enact an Independent Commission to investigate the same area that Mueller was pursuing. The problem is that it would not have the power to press criminal or civil charges – that still remains the domain of the Justice Department.
It’s also possible that Mueller could file a lawsuit seeking to vacate his firing, arguing that the Special Counsel Regulations are pointless if there’s no way to enforce them. But clearly that, like so much of what Trump is churning up, is unchartered waters.
But assuming the worst-case scenario and Mueller is removed, then what?
We need to remember that the FBI has already launched a formal counterintelligence investigation of its own into the meddling by Russia in the 2016 elections, and it’s over a year old. It will continue and there’s nothing Trump can do to stop it.
The FBI investigation is focused on “if any American citizen acted in concert with the Kremlin to commit acts of espionage, obstruction of justice, interference with the federal election process and other crimes.”
Clearly the aspect that has Trump the most worried is the money trail, and Mueller has the power to obtain his income tax returns. Just as Deep Throat advised concerning Nixon and the Watergate investigation, “follow the money” that still holds true today.
Mueller’s firing would definitely impede the progress of the investigation, because as Special Counsel he has broad investigatory powers including access to the Treasury Department’s FinCEN (Financial Crimes Enforcement Network) that concentrates on money laundering, as well as the IRS and other executive departments. So, Mueller’s team has focused on federal criminal acts, while FBI has focused more on espionage.
No doubt Mueller and his team have given some thought to contingency plans if he were to be terminated, as his position largely stems from a political rather than legal aegis. It depends on how far Trump is willing to ignore not only the rule of law, but the traditions of his office. If past is prologue, this is not an encouraging sign.
Mueller’s team has surely documented everything they’ve done, creating a large body of work product which Congress could demand in the event he was removed. It’s highly doubtful that Trump, or even a bevy of his lackeys, would – or even could – destroy all that evidence.
And even then, Mueller and his team could be called to testify before Congress to share what they had found to date. So there are mechanisms in place to protect and see that their findings are disseminated to people who could act on that information.
The main concern is that if somehow Mueller were removed, that Congress would continue in its current format of facilitating Trump’s endless outrages and make no effort to take proper action and impeach him. The fact that it’s very possible that Republicans will continue to put party before country is the real risk our nation faces.
RESOURCES
https://www.gpo.gov/fdsys/pkg/CFR-2001-title28-vol2/pdf/CFR-2001-title28-vol2-part600.pdf
http://www.businessinsider.com/can-trump-fire-special-counsel-robert-mueller-pardon-2017-7
http://theweek.com/articles/713648/what-happens-trump-fires-mueller
http://www.latimes.com/opinion/op-ed/la-oe-mcmanus-mueller-fire-20170723-story.html
http://www.reuters.com/article/us-usa-trump-sessions-scenarios-idUSKBN1AA2U9?il=0
12 Responses to “Are You Ready for “Saturday Night Massacre Redux”?”
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Thanks to Nameless for the painstaking and careful research into this new “Saturday Night Massacre Redux”. Once again, I defer to the experts who are much more adept at this sort of activity. What happens in the near future remains hidden, unseen until the curtain finally slams down on Drumpf. The fallout will certainly reflect on his family and minions. It all cannot happen soon enough. .
Cross posted to Care2 here.
“[T]he possibility that the majority party Chairpersons would be of the same party as the president, and either spineless enough or unwilling to act.” that sounds like something Republicans would do, but would THINK (or claim to think) Democrats would do.
As much as I love Adam Schiff, I don’t know how he thinks enough Republican support could be gained for Congress to enact an Independent Commission. It’s possible that there are plenty of Republicans who have SAID – privately – that they would support one, but we have seen too many Republicans today say they would vote one way and then vote another. “Projection” is a result of believing everyone else is just like oneself – I don’t say Adam is projecting, but I do think he may have misplaced confidence.
“Mueller’s team has surely documented everything they’ve done, creating a large body of work product” – to whom does that body of evidence belong? What can be done with it? While many outcomes are still possible, my main concern at this point would be getting evidence to a person and/or a place where it might actually be used to good effect. Such as Eric Schneiderman in New York. Quite possibly Mueller and his team may not be able to pass anything to Schneiderman directly. But – maybe through the FBI? The FBI seems to me to be the natural recipient of such evidence, but I don’t know what limitations there might be.
“The fact that it’s very possible that Republicans will continue to put party before country is the real risk our nation faces.” Agreed. I might add, “The continued existence of our government rests on the ability of Democrats to circumvent Republicans putting party before country, because THEY WILL.”
That proviso protecting against a spineless Congress belonging to the same party as the president was the work of a committee put in place by AG Janet Reno, and headed by a Deputy AG staff member named Neal Katyal back in 1998. So they were all solid Democrats who knew how sleazy republicans could be.
https://judiciary.house.gov/_files/hearings/pdf/Katyal080226.pdf
The then formulated Special Counsel Regulations (known as “Part 600 – General Powers of Special Counsel”) were enacted in 1999. (“Part 600” refers to the Section of the CFR – Code of Federal Regulations.)
https://www.gpo.gov/fdsys/pkg/CFR-2001-title28-vol2/pdf/CFR-2001-title28-vol2-part600.pdf
Several of the resources (and I’m sure I left out a couple – it was very interesting, but exhausting to plow through them) opined that Congress would in some manner have access to Mueller’s work product should he be terminated.
And everyone that dealt with it was sure that Mueller and his team had contingency plans in place for that very scenario.
A couple of the articles mentioned that the NY AG would be able to pursue his own investigation, but didn’t go into any detail because they all were focused on the federal level. It would surprise me if the Special Counsel were able to just “share” information they’ve gained through their investigation with another party at the state level. I think the NY AG is on his own to pursue the matter.
“It would surprise me if the Special Counsel were able to just “share” information they’ve gained through their investigation with another party at the state level.” Yeah, I expect you’re right. But the FBI has been known to cooperate with state law enforcement to some degree, which is why I brought them up.
Of course, my obsession with state prosecution is based on the fact that no Federal Pardon can apply to any state conviction.
Wow! I hope that the investigation goes forward. Lots to worry about though. I too, hope (and pray) for total destruction of the ’empire’. For me, it can’t happen soon enough.
Excellent articles, and post, Nameless, will review later the links you’ve provided as well. Thank you, Joanne for cross posting.
Thank you Nameless for a most excellent article. Could Fuhrer Drumpfenfarten order an FBI Director to quash that investigation?
Geez … isn’t it bad enough we’re faced w/ a possible “Saturday Night Massacre” in the Dept. of Justice? And now you’re contemplating it could metastasize to the FBI?!?
I don’t believe that Trump has any say in how the FBI conducts their business. But that’s not to say he couldn’t fire the Director (assuming Wray is confirmed) and try to appoint a lackey to his liking.
Given the tumult Trump has already created in the FBI w/ his firing of Comey, I just can’t believe that another firing wouldn’t be way too much for even the obsequious GOP sycophants. But I could be wrong.
I’m not saying he will, my friend, and I agree that he has no say in the FBI’s business. However, if he gets desperate enough, putting a craven sycophant in a position that does have control of the FBI’s business is within the possible realm of the Fuhrer.
I’ve concluded that other than giving virgin-birth, there’s NOTHING that Twitler is not capable of at least trying …
The sooner he’s GONE (take that however you want) – the better the whole world will be.
Are you SURE he wouldn’t try virgin birth?
Excellent article, Nameless! In-depth research wrapped in eloquent and clear writing, making it comprehensible for all and an educational windfall for me.
There are a lot or roads and diversions on roads Drumpf and his (legal) team can take, and Drumpf being Drumpf, there’s no way to predict which one he’ll choose…and come back on…threaten with another and… All we know he’s as guilty as sin; how he’ll be brought to justice and when is an entirely different matter.
Thanks for your hard work on this, Nameless. I hope it didn’t replace the previous headache with a new one.