President Donald Trump has sent some pretty strong signals that his next target is special counsel Robert Mueller. During his recent New York Times interview, the President suggested that there are conflict-of-interest problems in Mueller’s office. Both The New York Times and The Washington Post reported Thursday evening that Trump’s revamped legal team is exploring ways to undercut Mueller by pursuing these allegations of conflicts of interest and exploring how the President could use his pardoning powers.
Following these reports, the evening news shows instantly lit up with warnings that firing Mueller would throw the country into the kind of constitutional crisis that we have not seen since Richard Nixon’s presidency. Just as quickly, Trump’s supporters — and some commentators who are not particularly sympathetic to the administration — dismissed these warnings.
But perhaps the most telling parallel suggested by The New York Times was between the Trump team’s efforts against Mueller and the steps Bill Clinton’s White House took in the 1990s against independent counsel Ken Starr. Another comparison is with Lawrence Walsh, who came under fire from President Ronald Reagan’s supporters during his investigation of Iran-Contra scandal.
But this comparison misses something pretty fundamental. Both Starr and Walsh were working under the independent counsel law that Congress passed in 1978 as part of the Ethics in Government Act. The law protected both men from an aggressive president, and both could count on the fact that their team would not be stifled by an administration intent on obstructing justice. Clinton and Reagan could criticize and castigate the prosecutors all they wanted, but it would be nearly impossible to have them fired. Their work could go on unimpeded.
Under the independent counsel law, the attorney general was required to recommend a special prosecutor when they were given charges of misconduct by the executive branch. (The only way to say no was for the charges to be “so unsubstantiated” that there was no reason to move forward.) A three-judge panel from the US Court of Appeals for the District of Columbia Circuit was then responsible for appointing the prosecutor who would not have to work under any deadlines or budget limits.
The ability of the attorney general to stop an investigation were extremely limited. The desire to protect the investigator was the reason that Congress created this law in the aftermath of Nixon’s resignation, with the memories of the president firing special prosecutor Archibald Cox in the “Saturday Night Massacre” fresh on people’s minds.
During the mid-1970s, lawmakers in both parties understood the dangers that the nation potentially faced in an era of strong presidential power, what Arthur Schlesinger Jr. called the age of the “imperial presidency.” The protections offered by the Constitution were not enough. When President Jimmy Carter signed the law, he said: “I’m hopeful, of course, that this authority will rarely be needed, but I believe it is necessary in response to the lessons that we have learned to the embarrassment of our country in the past.”
Eventually, Congress and Clinton decided to let the law expire in 1999. After several rounds of independent counsel such as Ken Starr who seemed overzealous and unaccountable, Clinton and the Republican Congress decided they did not want to defend the law any longer. After the lapse of the US Office of Independent Counsel in 1999, its duties were taken up by the Department of Justice Office of Special Counsel.
Now, we see we might be paying the price. There was something to those Watergate reforms. Under the current set-up, there are several avenues through which Trump can have Mueller fired. The biggest roadblock against his taking this step would be the political backlash that he would face if he did so. According to the regulations issued in 1999, the attorney general can remove a special counsel “for misconduct, dereliction of duty, incapacity, conflict of interest or for other good cause, including violation of Departmental policies.”
This is exactly why Trump has raised the possibility he needs a new attorney general and why he reminded The New York Times reporters there weren’t a lot of Republicans in Baltimore, which the President seems to think is the hometown of acting Attorney General Rod Rosenstein (it is not). Trump can call on Rosenstein, if he is still in the job, to fire Mueller and lay out the case about why this should be done. Trump could potentially fire Rosenstein if he doesn’t carry out the order and keep asking the replacement until he found someone willing to go along. “That means it could go down the line until an assistant attorney general did not resign and instead carried out the President’s order,” Harvard Law School professor Jack Goldsmith wrote.
Yale Law School professor Akhil Amar told Politico that Trump could also rescind the Justice Department regulations governing the special counsel and diminish the ability of Rosenstein and others to resist. The only true firewall is political, meaning that Trump risks looking so corrupt and so intent on protecting something, that some Republicans on Capitol Hill could potentially join some Democrats in moving toward impeachment.
Ultimately, since we no longer have an independent counsel, we are now much closer to Nixonland, to borrow a term from the historian Rick Perlstein, than Clintonland. While it is certainly legitimate and possible for the President and his advisers to attack Mueller in the same way Clinton supporters did, moving to fire him would be a whole different story. If anyone doubts that Trump is capable of taking the next step, they should remember what happened to James Comey.
All of this is why the threats that Trump has made are so serious, and this is why the false equivalency between Trump and Mueller and Clinton and Starr or Reagan and Walsh really misses a fundamental point. If the President moves to do what it seems like he is preparing to do, he will set the nation off into a period of great turmoil and, regardless of how much confidence he has in his ability to win, he will put his presidency and his future in peril unless congressional Republicans are that blinded by partisan fervor they don’t have the courage to respond.
If anyone does have the ear of our President, it’s time they tell him to stop. He needs to let this investigation continue unimpeded. If he has nothing to hide, he has to stop acting like he desperately does.
