President Donald Trump and his supporters are looking for ways to disparage Robert Mueller, the former FBI director who is investigating Russia’s attack on America’s 2016 election.
The New York Times reports that Trump’s political aides and legal counsel are hoping to find a conflict of interest they could use to discredit Mueller’s investigation — or even build a case to fire him.
Can Trump fire Mueller?
Marty Lederman, a professor at the Georgetown University Law Center, writes that Mueller can only be fired by Rod Rosenstein, the deputy attorney general who hired him in May.
Rosenstein is acting attorney general in all matters related to the Russia investigation since Jeff Sessions has recused himself from this.
Moreover, Rosenstein could only fire Mueller “for misconduct, dereliction of duty, incapacity, conflict of interest or for other good cause, including violation of departmental policies.”
Trump’s people haven’t discovered any conflicts of interest — and they’re trying.
As for misconduct, dereliction of duty or incapacity, there is no case to be made against Mueller. Rosenstein himself has told the Senate as much.
Can’t Trump fire Rosenstein?
Rosenstein would then be succeeded by Associate Attorney General Rachel Brand, who doesn’t strike Lederman as the sort of person who would play along with Trump either.
If Trump were then to fire Brand as well, he would need to pick a United States attorney already confirmed by the Senate to promote to deputy attorney general.
There are few such officers in place, because Trump fired most Obama-appointed prosecutors two months into his presidency.
What if Trump tries to fire Mueller himself?
That is the fear.
Jonathan Bernstein argues at Bloomberg View that Trump could trigger a full-blown constitutional crisis if he does.
Presumably, he writes, the courts would then need to rule if Mueller was fired lawfully.
But, at that point, would Trump still respect the decision of judges?
The fact that we’re not 100 percent sure shows just how much damage Trump has already done to American democracy and the rule of law.