How Trump Could Actually Fire Robert Mueller

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On Monday, one of President Trump's confidantes told PBS NewsHour that Trump is allegedly considering firing special counsel Bob Mueller, who is overseeing the investigation into possible collusion between the Trump campaign and the Russian government during the 2016 campaign. The White House has spoken out against the claim, stating that the confidante in question never met in person with the president on Monday. But does he actually have the power to fire the man investigating his presidential campaign?

There's no question about it: If Trump canned Mueller, it would be a political scandal of historic proportions, one far more explosive than the president's firing of former FBI Director James Comey. And in a certain sense, Trump doesn't have the ability to directly fire Mueller. In several more broader senses, however, he does.

Special counsels, created through a 1999 act of Congress, don't answer directly to the president. They're appointed by the attorney general, and under normal circumstances, it's the attorney general who has the authority to fire them. However, these are not in normal circumstances.

Months before Mueller even entered the equation, Attorney General Jeff Sessions recused himself from the Russia investigation entirely. This left Deputy Attorney General Rod Rosenstein in charge of all things Russia-related, and it was Rosenstein who, in May, appointed Mueller to lead the investigation. According to the 1999 law that created special counsels, it is Rosenstein — not Trump — who has the authority to fire Mueller.

But there are several big caveats here. The first and most significant is that, despite what the 1999 law says, the president does ultimately have a constitutional right to fire any federal prosecutor. Neal Katyal, the former acting solicitor general who helped write the 1999 regulations, said that while it seems extraordinarily unlikely, Trump does technically have the right to fire Mueller. This is a matter of debate; others, such as University of Texas law professor Steve Vladeck, have argued that it's unclear whether or not the president has this authority.

If Trump didn't want to do this, he'd still have other ways to get rid of Mueller. He could order Rosenstein to do so, for instance, and while there's no way of telling how Rosenstein would react, the Justice Department generally acts at the behest of the president. If Rosenstein refused, Trump could fire him, and order the solicitor general, who would be next in line in the order of succession, to give Mueller the boot. If they refused, Trump could fire them as well — and so on, until somebody at the Justice Department was willing to give Mueller his walking papers.

Incidentally, this is more or less what happened during the Watergate scandal. President Nixon ordered the attorney general to fire Archibald Cox, the special prosecutor investigating Watergate. When the attorney general refused, Nixon fired him — and when the deputy attorney general refused, Nixon fired him as well. Finally, the solicitor general agreed, and Cox was fired. This episode has been dubbed the Saturday Night Massacre.

On the one hand, Nixon's decision to fire the special prosecutor by brute force was almost universally condemned, and it's generally regarded as one of the major turning points against the president during the Watergate scandal. This suggests that Trump might be wary of taking such action, as it would create enormous backlash against him, likely from even some of his staunchest supporters. On the other hand, 2017 is a different time from 1973: A year ago, it would have seemed inconceivable for a president to fire his FBI Director, and yet that's exactly what Trump did.

The president has bucked many institutional norms without paying much of a penalty, and so it seems entirely within the realm of possibility that, through one mean or another, he would be willing to fire Mueller. Would this be controversial? Yes. But Trump has never shied away from controversy, and given the GOP-controlled Congress' unwillingness to buck Trump on, well, anything, it's perfectly plausible that he could fire Mueller and suffer no consequences for doing so.