Justice

Mueller v. Trump: The Ultimate Lawsuit

Odds are that Trump will eventually fire special counsel Robert Mueller. Lawyer Steven Harper games out what would happen next.

Mueller v. Trump: The Ultimate Lawsuit

Special counsel Robert Mueller leaves after a closed meeting with members of the Senate Judiciary Committee on June 21, 2017 at the Capitol in Washington, DC. The committee met with Mueller to discuss the firing of former FBI Director James Comey. (Photo by Alex Wong/Getty Images)

Eventually, Trump is likely to fire special counsel Robert Mueller. Trump’s repeated statements about the Russia “hoax” — along with his apparent attempts to influence the FBI’s investigation — warrant a close look at the process by which he could do so. Equally important are the limited ways to stop him. Whether by design, inadvertence or a combination of both, Trump and his minions — including Newt Gingrich and Trump’s lawyers — have been laying the groundwork for what could become America’s defining moment.

 
The Rules and the Players

To stop the investigation, Trump’s cleanest path requires that one of his loyalists occupy a Senate-confirmed position in the Justice Department’s chain of command. With Attorney General Jeff Sessions’ recusal, the power to end the inquiry has now landed in Deputy Attorney General Rod Rosenstein’s lap. But Sessions’ recusal also gave Rosenstein the authority to appoint a special counsel. When he tapped Robert Mueller for the job, it was a game-changer.

Under the Justice Department’s special counsel regulations, Trump can’t fire Mueller directly. Only the attorney general can pull the trigger for “misconduct, dereliction of duty, incapacity, conflict of interest or for other good cause, including violation of departmental policies.” For now, that determination rests with Rosenstein. If he drops out, next in line are Associate Attorney General Rachel Brand and US Attorney Dana Boente. After that, things get murky, because the Senate has not confirmed any other Justice Department official. That’s important because without Senate confirmation, even temporary advancement to departmental leadership is problematic.

 
Step 1: Clearing the Board

As the FBI’s Russia investigation intensified, so would have Trump’s desire for DOJ loyalists whom he could direct to end it. That might explain Trump’s curious about-face involving Manhattan’s US Attorney Preet Bharara. In November, Trump had personally asked Bharara to remain on the job during his administration. But on March 10 — a week after Sessions’ recusal from the Russia investigation — Trump made a stunning reversal: He fired Bharara, along with every remaining US attorney in the country, except for Rod Rosenstein and Dana Boente. Overnight, the Justice Department was without any Senate-confirmed officials, except for the three who now remain: Sessions, Rosenstein and Boente.

 
Step 2: Removing Rosenstein

After Trump cleared the board, Rosenstein became a problem for the president, starting with his appointment of special counsel Mueller. Then Rosenstein testified before the Senate Appropriations Committee on June 13 that he would not fire Mueller without the necessary “good cause” — and that he hadn’t seen any yet. After that performance, Trump couldn’t count on Rosenstein to fire Mueller, and the process for moving Rosenstein out began swiftly. Once reports surfaced that Mueller was investigating the possibility that Trump had obstructed justice by firing FBI Director Comey, it took only a tweet to put Rosenstein in the hot seat:

Then Trump’s personal attorney followed up on the Sunday morning talk show circuit — Face the Nation, Fox News Sunday, Meet the Press — reviving the false story that Rosenstein’s May 9 memo led Trump to fire Comey. Bottom line: If Mueller’s investigation includes the circumstances surrounding Comey’s firing, Rosenstein will likely become a witness and may feel compelled to recuse himself from supervising Mueller.

 
Step 3: But Trump Can’t Count on Brand or Boente

If Rosenstein drops out, Rachel Brand takes the stage. The Senate confirmed her as associate attorney general on May 18. A longtime Republican, she worked on Elizabeth Dole’s presidential campaign and in the office of legal policy for President George W. Bush’s Justice Department. But Brand’s solid Republican credentials are irrelevant to her personal and professional integrity. Benjamin Wittes, a friend in whom then-FBI Director James Comey confided some of his concerns about Trump, tweeted on June 16:

If Wittes’ assessment is correct, Brand would balk at executing an unlawful Trump order. At a minimum, Trump’s advisers gaming out the “fire Mueller” scenario have to assume that she would not fall in line.

Next up, Dana Boente, would be no sure thing for Trump, either. Regarded as tough but evenhanded, he’s a career prosecutor who has spent 33 years in the Justice Department.

 
Step 4: Find Allies

For three months after he fired every incumbent US attorney, Trump didn’t nominate any replacements. But on June 12 — the same day Trump’s longtime friend and chief executive of Newsmax Media, Chris Ruddy, visited the White House and then said on the PBS NewsHour that Trump was “considering, perhaps, terminating the special counsel” — Trump announced his first wave of nominees:

  • Alabama (Southern District): Richard W. Moore
  • Alabama (Northern District): Jay E. Town
  • Alabama (Middle District): Louis V. Franklin Sr.
  • District of Columbia: Jessie K. Liu
  • Ohio (Northern District): Justin E. Herdman
  • Oklahoma (Eastern District): Brian J. Kuester
  • Tennessee (Western District): D. Michael Dunavant
  • Utah: John W. Huber

Once confirmed, each of these US attorneys becomes eligible for the Justice Department’s line of succession. The next step would be for Trump to issue another executive order. (It would be his third one resetting the departmental lineup.) He could list new US attorneys based on their fealty to him. When the time came to fire Mueller without satisfying the “cause” requirements of the governing regulations, Trump could proceed down that list until he got compliance.

 
Step 5: Move ‘Em Through the Senate

Regardless of Trump’s underlying motivations, the prior sequence of events raises the stakes in the otherwise routine task of confirming a president’s selections for US attorney. Perhaps it’s a coincidence, but three nominees hail from Jeff Sessions’ home state of Alabama. And Trump’s Ohio pick comes from White House counsel Don McGahn’s former law firm, Jones Day — which has supplied a dozen lawyers to the Trump administration. All eight nominees merit close scrutiny.

 
What Can Stop Trump?

Sen. Sherrod Brown (D-OH) could halt the confirmation hearing on Trump’s Ohio nominee by using the Senate’s traditional “blue slip” process to express disapproval. But except for the District of Columbia, which has only “shadow senators” who can’t vote, all other Trump nominees are from states with two Republican senators (Alabama, Oklahoma, Tennessee and Utah). Unless they break ranks, there’s no “blue slip” obstacle to Senate hearings on those nominees.

In the upcoming confirmation hearings, senators should ask each candidate a critical question that transcends party politics: Will you defy a presidential order to fire Robert Mueller?

The answer will reveal everything the country needs to know about the nominee’s respect for democracy and the rule of law. To assist concerned citizens who want to prod members of the Senate Judiciary Committee to do the right thing, here’s a list with links to individual contact information:

Republicans

 

Democrats

It’s possible that Trump won’t fire Mueller and precipitate a constitutional crisis. But that would require unprecedented Trump behavior: placing the country ahead of his personal self-interest.

Firing Mueller will mark a new low in Trump’s scorched-earth attack on established norms and the rule of law. When Mueller files suit to keep his job, it will become the most important litigation in American history. Every patriot should pray that he wins.

Steven Harper

Steven Harper blogs at The Belly of the Beast, is an adjunct professor at Northwestern University, and contributes regularly to The American Lawyer. He is the author of several books, including The Lawyer Bubble — A Profession in Crisis and Crossing Hoffa — A Teamster’s Story (a Chicago Tribune “Best Book of the Year”). Follow him on Twitter: @StevenJHarper1.