Phillip Bump of the Washington Post has a helpful article up that helps us understand the law that established the process for a special counsel, including how a special counsel can and cannot be removed. As part of his analysis, he points at the fact that Congress has at long last decided to add some protections for Robert Mueller so that President Trump will find it more difficult to fire him, but he also warns that even if the law passes and is signed into law by Trump (or Congress overrides his veto), the president can still find ways to obstruct justice.
The action in the Senate is happening initially in that chamber’s Judiciary Committee which is chaired by Sen. Chuck Grassley of Iowa. Sen. Grassley is moving a bill that is sponsored by Republican Sen. Thom Tillis of North Carolina and co-sponsored by Sens. Lindsey Graham, Chris Coons and Cory Booker.
The Post’s Karoun Demirjian reports that the bipartisan bill would mandate a 10-day waiting period after an order to fire the special counsel, during which period the firing could be appealed to a panel of three judges — and during which time no staff changes could be made to the special counsel’s team and no documents could be destroyed.
In other words, Trump would not be able to send people in to confiscate Mueller’s records and his decision to fire him would have to pass muster with the judicial branch of the government. But if Trump were to instead to simply fire Deputy Attorney General Rod Rosenstein and replace him with someone else, he could gain control over what Mueller can and cannot do.
As we noted on Tuesday, though, replacing Rosenstein gives Trump another way to interfere with the investigation. Remember: Rosenstein gets final say over prosecutions and areas of investigation. Replacing Rosenstein with someone willing to help derail Mueller would allow Trump to tie Mueller’s hands. The new deputy attorney general could simply block any new indictments or, as an expert told me, likely scale back the scope of the investigation in significant ways. Mueller would still be in place — he just wouldn’t be able to do as much.
If Trump were to fire Rosenstein, Jeff Sessions would remain recused and the responsibility of overseeing Mueller’s investigation would fall to Solicitor General Noel Francisco. Francisco would be in control of Mueller until a new Deputy Attorney General could be confirmed by the Senate, and since anyone seeking confirmation would have to make promises that the president would not like to see kept, the only solution for Trump would be to leave that position vacant. If Francisco wasn’t willing to obstruct justice to Trump’s liking, he would still have one more card to play.
…the Vacancies Act of 1998 allows Trump to fill Senate-confirmed positions (like deputy attorney general) with anyone who has already received Senate confirmation for another position. There’s a question about whether that process applies to positions vacated after someone was fired, mind you, but it seems likely that Trump could successfully argue that it does.
In other words, Trump could fill the vacant position of Deputy Attorney General with anyone who has been confirmed by the Senate to a position in his administration during his presidency, including people who have since left their positions like former Secretary of State Rex Tillerson or former Secretary of Veterans Affairs David Shulkin. More likely, Trump would pick someone who would more favorably inclined to help him break the spirit of the law.
This is all interesting, but if Trump actually pursues some convoluted plan like this, the Republicans in Congress are going to flip out. I know people are rightly cynical that the Republicans will ever break with Trump, but we’re already seeing them take their first steps. That they’re going to vote to protect Mueller in the Senate Judiciary Committee is significant and would not be happening if Mitch McConnell hadn’t signed off on it.
As for the House, presumably you have seen this rant from an unnamed Republican congressman who said of Trump, “Dammit, he’s taking us all down with him. We are well and truly f**ked in November,” and “We’re going to lose the House, lose the Senate, and lose a bunch of states because of him…If we’re going to lose because of him, we might as well impeach the motherf**ker. Take him out with us and let Mike [Pence] take over. At least then we could sleep well at night.”
Trump is skating on extremely thin ice as it is, and James Comey is coming next week loaded for bear. What Trump can technically do is good to know. But if he thinks he can shut down this investigation now and get away with it, he’s sorely mistaken.