Recused-on-Russia Jeff Sessions is out, and Trump loyalist Matthew G. Whitaker is in as acting Attorney General. Brace yourselves.
It is impossible to read Attorney General Sessions’ firing as anything other than another blatant attempt by @realDonaldTrump to undermine & end Special Counsel Mueller’s investigation.
— Nancy Pelosi (@NancyPelosi) November 7, 2018
Matthew Whitaker, the acting Attorney General, clearly wants to limit the Mueller investigation. He must recuse himself and legislation should be brought to the Senate floor to ensure Mueller’s investigation is protected.
— Kamala Harris (@KamalaHarris) November 7, 2018
What happens to the Trump-Russia investigation if Whitaker fires special counsel Robert Mueller?
Whitaker has already gone on record saying that Mueller’s investigation risks becoming a “witch hunt,” and that Donald Trump’s finances aren’t anyone’s business. It’s certainly not out of the realm of possibility that Whitaker would comply with an order from Trump to oust Mueller.
Unfortunately for Trump, though, firing Mueller will not cause his investigation to dissolve. For starters, the many pieces of Mueller’s investigation which have already been outsourced will be utterly unaffected by Mueller’s firing. Former Acting Solicitor General Neal Katyal (who drafted the federal regulations for the appointment and removal of the independent counsel) explained it this way to CNN’s Anderson Cooper:
Mueller did something brilliant. From the start, he worked with the New York state attorney general’s office. This is significant because while the president has the prosecution power, it’s only the federal prosecution power. He can’t stop a state prosecution, and can’t pardon people under it.
This week, we learned that Mueller has also been working with federal prosecutors in New York. What he has effectively done is create almost a blockchain prosecution and dispersed his files among a variety of different sources, so that if something happened to that central hub, Mueller, there’s another way for the investigations to still unfold.
Let’s face it. Mueller has known from the start that Trump might fire (or order someone else to fire) him. There’s no way Mueller would be blindsided. Mueller, a veteran prosecutor, has always been a step ahead of Trump; when the state prosecutions ramp up, Trump will have no power to either inhibit them or to shield himself from the consequences. As we’ve discussed before, the Attorneys General of New York and California have already made significant headway in filling in any prosecutorial gaps left by a Mueller firing.
Whitaker or his successor could certainly appoint a replacement for Mueller, and that person could continue where Mueller left off. Although the regulations do not specifically detail the procedure following removal of the independent counsel, it’s a pretty well-established concept in the American legal system that investigations and prosecutions are not personal to the investigators and prosecutors who handle them. If a local detective were to die during a homicide investigation, the file would land on someone else’s desk. There’s no reason to believe it would work any differently here.
Sidebar: Richard Nixon got rid of the Watergate special prosecutor, Archibald Cox, by directing the Attorney General and Deputy Attorney General to fire him. Both refused to do so, and Nixon kept going down the chain until he found someone (Robert Bork, of failed-SCOTUS fame) who would do his bidding. And that didn’t go so well for Nixon (or for Bork, for that matter) in the long run. If Whitaker becomes the Bork of 2018, those Saturday Night Massacre comparisons are going to cause pandemonium.
Let’s also not forget about the other fallout that even a second-hand Mueller firing could cause: criminal prosecution. There’s that matter of obstruction of justice. Although there are no pending charges, obstruction of justice is something of a looming threat to President Trump. From the rumors that Trump once ordered the White House Counsel Donald McGahn II to fire Mueller, to his James Comey–Andrew McCabe drama, folks have been keeping 18 U.S.C. 1512 – Tampering with a witness, victim, or an informant close at hand. Because the statute prohibits even an attempt to interfere with an ongoing investigation, ordering Whitaker to fire Mueller would likely constitute pretty solid evidence that Trump tried to interfere with his investigation. The firing, on its own, would not necessarily prove obstruction, but it would certainly be an important step toward such a finding of fact. Given that even MAGA-hat-wearing Trump-lovers would assume that Trump wanted Mueller off his back, ordering that the special counsel be removed really doesn’t help Trump on the obstruction front.
In fact, legal experts have been considering the consequences of a Mueller firing for some time. A study titled “Why Trump Can’t (Easily) Remove Mueller—and What Happens If He Tries” was published by a group of renowned Constitutional and legal-ethical scholars, and they concluded that those consequences would be go to the heart of obstruction of justice:
“…removing Special Counsel Mueller with the intent to impede the Russia investigation would amount to a doubling down on the obstructive conduct in which Trump has already engaged. The case that a firing of Mueller would constitute obstruction of justice would be especially strong now that a grand jury has returned indictments against Paul Manafort, the president’s former campaign chairman, and Manafort’s former deputy, Rick Gates.”
Without doubt, President Trump will claim total immunity from such an obstruction (or any other) indictment (a claim we at Law&Crime have already analyzed as being a likely loser).
The aforementioned study concluded that the Nixon parallel would simply be too much for the Trump presidency to withstand. Speaking hypothetically just a few short months ago, the group ended its inquiry stating, “We expect (and would certainly call for) similar consequences if President Trump decides to emulate Nixon.”
Mueller himself might also have legal recourse in the event he’s fired. Mueller could sue Trump or Whitaker in federal court, and have the justice system step in and rule on any firing. Although Mueller is known as an “independent counsel,” he’s not independent in the sense that he is operating on his own. Rather, his independence refers to his lack of conflicts of interest with the target of his investigation. Mueller was appointed by the Department of Justice, and operates under authority stemming from federal DOJ regulations.
The letter appointing Mueller authorizes him to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” as well as other matters that “may arise directly from the investigation.” Mueller is empowered to press criminal charges, and he can request additional resources subject to the review of an assistant attorney general.
It is entirely possible that a federal court would rule that firing Mueller before his work is completed and without Congress’ approval is utterly illegal, and that the court would direct Mueller to continue his investigation and potential prosecution. If there’s one thing courts never like, it’s the thwarting of statutory intent. Neal Katyal wrote for The Washington Post, about the ideals underlying the drafting of the DOJ regulation authorizing independent counsel:
We particularly feared the ‘death by a thousand cuts’ strategy, whereby a president or his attorney general would take the subtle approach of starving a prosecutor of resources or permissions. Those denials would fly under the radar, and no one denial would necessarily be significant, but collectively they would amount to massive interference. We therefore forced the attorney general’s hand: The regulations say that if he is going to interfere with a special counsel, it must be reported to Congress.
For now, we’ll just have to wait to see how this all unfolds. Whether Whitaker will Bork himself into the history books, or whether he’ll simply mark time until his eventual successor is left with the tough choices remains to be seen. Either way, it sure seems like the House is ready.
President Trump just removed Jeff Sessions. He wants an Attorney General to serve his interest, not the public.
Mueller’s investigation and the independence of the DOJ must be protected. Whitaker and any nominee must commit to doing both.
We will protect the rule of law.
— Adam Schiff (@RepAdamSchiff) November 7, 2018
[Images via Alex Edelman-Pool/Getty Images, Saul Loeb/AFP/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.