President Trump Might Fire the Special Counsel. Can He Do That?

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A close ally of President Donald Trump ignited speculation this week that Trump could fire the special counsel heading up the investigation into Russian interference in the 2016 election, raising the prospect of a third explosive firing at the top ranks of American law enforcement in Trump’s short presidency.

The possibility that former FBI Director Robert Mueller — who Deputy Attorney General Rod Rosenstein appointed as special counsel only last month — could be fired immediately sparked bipartisan opposition. “I think he’s weighing that option,” Newsmax CEO Chris Ruddy, a close Trump friend, told PBS Newshour’s Judy Woodruff on Monday. Trump has already fired Acting Attorney General Sally Yates and, more famously, FBI Director James Comey.

The White House said Monday that Ruddy speaks only for himself and not for Trump, though officials did not actually deny that Trump might fire Mueller. Ruddy pushed back, telling CNN on Tuesday that Trump has considered it because Mueller is “illegitimate” as special counsel. And Trump has not commented directly, though he railed vaguely against “purposefully incorrect stories” in a Twitter post on Tuesday morning.

The removal, should it happen, would surely be just as controversial — if not even more so — than Trump’s decision to fire Comey. Here’s what you need to know about the possibility and its implications.

Can Trump really fire Robert Mueller?

Technically, yes — but it’s complicated, and experts say the possibility is far-fetched.

Under the regulations that enabled Rosenstein to appoint Mueller, only the Attorney General — or in this case, Rosenstein, since his superior, Attorney General Jeff Sessions, has recused himself from the Russia investigation — can remove the special counsel. Regulations say the prosecutor can be removed on grounds of “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,” and the termination must be in writing.

Of course, Trump could direct Rosenstein to fire Mueller and cite any of those reasons above. But Rosenstein said during a congressional testimony on Tuesday that he sees no evidence of cause to terminate Mueller, and that he would only follow through on termination orders unless they were “lawful and appropriate.”

“If there were not good cause it wouldn’t matter to me what anybody says,” Rosenstein told the Senate Appropriations Committee, where he was testifying about the Justice Department’s budget. “You have my assurance that we are faithfully going to follow that regulation.”

But Neal Katyal, a partner at the firm Hogan Lovells and former Acting Solicitor General who wrote the special counsel regulations almost two decades ago, says that ultimately, Trump has the constitutional authority to fire who he wants, and the power to repeal the regulations.

“Our Constitution gives the president the full prosecution power in Article II; accordingly, any federal prosecutor works ultimately for the president,” Katyal wrote in the Washington Post last month. “That constitutional reality is not something we could write around with a regulation.”

Why is this coming up now?

Criticism of Mueller, who is generally well regarded across both parties, has been building in conservative media for days. Ruddy’s remarks on Monday came after attorney Jay Sekulow’s appearance Sunday on ABC News’ This Week With George Stephanopoulos. Sekulow, who is part of Trump’s legal team, said he wasn’t going to speculate if Trump would fire Mueller, but that he “can’t imagine that the issue would arise.”

Former House Speaker Newt Gingrich, a vocal Trump ally who only last month called Mueller a “superb choice” with an “impeccable” reputation, turned against Mueller on Twitter early Monday morning before Ruddy’s remarks, pointing to Mueller’s hiring of lawyers who have donated to Democratic political campaigns.

Although Ruddy told Woodruff it would be a “significant mistake” for Trump to fire Mueller, he also noted that Mueller was previously a lawyer at WilmerHale, a law firm that represents Jared Kushner and Ivanka Trump, and could therefore have conflicts of interest. But the Department of Justice told the Post that ethics officials had reviewed the cases and determined it was still appropriate for Mueller to head the investigation.

What happens if Trump actually fires Mueller?

If Trump orders Rosenstein to fire Mueller and Rosenstein complies, the position of a special counsel would remain vacant, until — or unless — Rosenstein appoints another one. Rosenstein has the authority to appoint whoever he wants, independently of the White House — which is what he did when he appointed Mueller.

But at that point, experts say, appointing a new special counsel would seem almost meaningless.

“At some point it becomes an exercise in futility,” said Andrew Herman, member of the Washington law firm Miller & Chevalier. “It’s kind of like the sorcerers apprentice.”

The Department of Justice declined to comment for this story. But there are other options for independent investigations. Even if the Department of Justice does not re-appoint another prosecutor, Congress can pass a law establishing its own independent counsel, a possibility ranking House Intelligence Committee member Adam Schiff tweeted about Monday evening:

However, establishing a statute for an independent counsel would require approval from both Republican-controlled chambers of Congress, as well as Trump, unless Congress has enough votes to override a presidential veto. House Speaker Paul Ryan was only the most senior Republican to vouch for Mueller on Tuesday. But it remains far from clear whether Congress would buck Trump in pushing a new independent counsel law.

Congress can also appoint a select committee or an independent commission, but neither has prosecutorial powers.

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