President Donald Trump does, indeed, have the ability to fire Special Counsel Robert Mueller, as White House Press Secretary Sarah Huckabee Sanders reminded reporters on Tuesday and as Obama Administration Solicitor General Neal Katyal, one of the authors of pertinent regulations, reminded everyone almost a year ago.
Sanders, people seemed to think, made news when she said Tuesday afternoon that Trump “certainly believes he has the power to make that decision,” that is, the power to fire Mueller.
.@jonkarl: "Does the president believe he has the power to fire special counsel Robert Mueller? Does he believe that's within his power?"@PressSec: "He certainly believes he has the power to do so." https://t.co/BBycoSDMsK pic.twitter.com/rVOchocz8E
— ABC News (@ABC) April 10, 2018
“We’ve been advised that the president certainly has the power to make that decision,” Sanders said. “I know a number of individuals in the legal community, and including at the Department of Justice, said he has the power to do so.”
The remarks caused a bit a stir on Verified Account Twitter.
Q: Does POTUS have the power to fire Mueller? .@PressSec: "He certainly believes he has the power to do so."
— Ken Thomas (@KThomasDC) April 10, 2018
White House @PressSec asserts that Trump has the power to fire Mueller himself, and therefore would not have to order the Justice Department to do so.
— Peter Baker (@peterbakernyt) April 10, 2018
Why is Cohen raid an “attack on our country”? @PressSec: "I think the president is clear that he feels it’s gone too far.”
Does Trump feel he has the power to fire Mueller?
"He certainly believes he has the power to do so."— Rebecca Ballhaus (@rebeccaballhaus) April 10, 2018
“We’ve been advised that the president certainly has the power to make that decision,” Sarah Huckabee Sanders told reporters during a press briefing. https://t.co/Pt6xSy5g35
— HuffPost (@HuffPost) April 10, 2018
As Legal Editor Chris Geidner at BuzzFeed News helpfully pointed out in one place — and as the Law&Crime archives show — this is not new news.
Reporter notes that many say Trump would have to ask Rosenstein to fire Mueller and could not fire him directly. @PressSec responds: "He has the power to do so." Adds: "The president certainly has the power to make that decision."
— Chris Geidner (@chrisgeidner) April 10, 2018
To be clear, @PressSec wasn't saying something new today. For his part, @neal_katyal — the acting SG for a period under Obama — has gone on about this for nearly a year now: https://t.co/un33zfYbNo
— Chris Geidner (@chrisgeidner) April 10, 2018
One of the authors of regulations specifically outlining the method of the removing a special counsel, the aforementioned Neal Katyal, said nearly a year ago that Trump could directly fire Mueller by repealing a regulation that says he must ask the attorney general to do so.
Let’s just paste his thread here and talk about it.
constl power to do so, but we made it hard by regulation. In Part 7 we said SC can be removed "only by the personal action of the AG" and 2/
— Neal Katyal (@neal_katyal) May 18, 2017
"for misconduct,dereliction of duty,incapacity,conflict of interest,or for other good cause."The reg written to say only AG can fire SC, 3/
— Neal Katyal (@neal_katyal) May 18, 2017
but Pres can direct repeal of the reg. He'd have to do so publicly, however. So it forces publicity and accountability for such a choice.4/
— Neal Katyal (@neal_katyal) May 18, 2017
But no regulation can stop this, as its part of our constitutional design: The President controls the prosecution power (a key reason why 5/
— Neal Katyal (@neal_katyal) May 18, 2017
elections have such impt consequences). The regs try to temper that constl reality w/as much publicity for any interference as possible. 6/6
— Neal Katyal (@neal_katyal) May 18, 2017
In summary: Trump has the constitutional power to direct repeal of a regulation that the attorney general alone may fire a special counsel; the president controls prosecution power; the regulation, if repealed, subjects Trump to all of the negative publicity that will come with such a move because he has to repeal it publicly.
Since Jeff Sessions is recused on the matter of the Russia probe, the responsibility of deciding whether or not to fire Mueller, if Trump were to ask for this, falls to Deputy Attorney General Rod Rosenstein.
If Rosenstein declines to do so, Trump can take the repeal-the-regulation route, but not without consequences of ensuing press and public ire.