Of Course Trump Can Fire Mueller. He Shouldn’t.
By John Yoo and Saikrishna Prakash
Mr. Yoo is a law professor at the University of California, Berkeley. Mr. Prakash is a law professor at the University of Virginia.
April 13, 2018
President Trump this week claimed the power to fire the special counsel, Robert Mueller, “directly.” In response, the Senate Judiciary Committee seems poised to prohibit Mr. Mueller’s removal by the president except “for cause,” which generally requires a crime, violation of the law, or abuse of power. While the Senate has the politics right, Mr. Trump has the Constitution on his side.
Firing Mr. Mueller would be a grave political mistake — “suicide” as a Republican senator, Charles Grassley, rightly put it — yet protecting the independent counsel with a new statute would prescribe a cure far worse than the disease.
Instead, President Trump should seize the initiative. He should retain Mr. Mueller in exchange for a fixed deadline for the investigation.
Mr. Trump sparked this latest controversy after an F.B.I. search on Monday of the Manhattan offices of Michael Cohen, his longtime personal lawyer, for evidence of payoffs of women alleging past affairs with the president. Though the federal prosecutors of the Southern District of New York sought the search warrant, they acted under a request from the special counsel, who would most likely use any information uncovered in his continuing investigation.
Mr. Trump declared that “attorney-client privilege is dead” and denounced the search as “a witch hunt.” He added of Mr. Mueller that “many people have said you should fire him.” As usual, the president left the nation in suspense: “We’ll see what happens.”
Mr. Trump can fire the special counsel for the search, for exceeding the original mandate of his investigation, or for no reason at all. Because the Constitution charges the president with the duty to “take care that the laws are faithfully executed,” Mr. Trump serves as the top federal law enforcement officer. If he disapproves of the execution of the law by subordinate Justice Department officers, he can remove them. Presidents can not only direct all federal prosecutions, as they have from the days of George Washington and Thomas Jefferson, they also can drop cases for wasting resources.
But critics insist that Mr. Mueller enjoys protection under Justice Department regulations, which provide that the special counsel may be “removed from office only by the personal action of the attorney general” for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.”
According to this view, Mr. Trump must convince Rod Rosenstein, the acting attorney general, to fire Mr. Mueller. If Mr. Rosenstein refuses, Mr. Trump can fire him and replace him with someone willing to do the dirty work. Alternatively, the president could order Attorney General Jeff Sessions, who has recused himself from the Mueller probe, to rescind the regulations, which date back to 1999, and then fire Mr. Mueller.
But this narrow view of the president’s options rests on a misunderstanding of basic constitutional principles. Ever since the founding, presidents, Congresses and the Supreme Court have recognized that the chief executive has constitutional power to remove executive officers. As James Madison noted in 1789: “Is the power of displacing an executive power? I conceive that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” In Myers v. U.S. (1926), the Supreme Court observed “it was natural, therefore, for those who framed our Constitution to regard the words ‘executive power’ as including” the power to remove executive officers.
A regulation issued by the Justice Department should not be read to limit the president’s constitutional power to remove officers. Otherwise, a mere cabinet officer could prevent future presidents from exercising the constitutional authorities of their office. The chief executive commands the attorney general, not the other way around.
A bipartisan group of senators are currently mulling a proposal to prevent the president from firing Mr. Mueller except for cause, and to allow the courts to review his removal. The Senate Judiciary Committee has scheduled the bill for a possible vote next week.
But any law that prevents the president from removing executive officers would be constitutionally problematic. In his lonely dissent in Morrison v. Olson (1988), Justice Antonin Scalia noted that independent counsels would become unhinged Inspector Javerts. “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing,” Mr. Scalia wrote. “But this wolf comes as a wolf.”
Mr. Scalia had in mind the Iran-contra investigation, which attempted to criminalize a separation of powers dispute between the executive and legislative branches over foreign policy. In the following decade, Democrats belatedly saw the light, too. Ken Starr’s investigation of Bill Clinton lasted for years, consumed enormous resources, and resulted in few convictions. By the end, Congress allowed the independent counsel law to quietly die. Resurrecting this Frankenstein would once again strike a blow at the separation of powers, which protects individual liberty as surely as the Bill of Rights itself. It would also let Congress off the hook for conducting a vigorous probe and possible impeachment — the constitutional text’s only device to punish a sitting president.
Mr. Trump can short-circuit the Senate and shift the political momentum in his favor. Rather than fire Mr. Mueller, the president should promise his honest and complete cooperation with his nemesis, including agreeing to a one-on-one interview.
But Mr. Trump should also make clear that the special counsel must keep to his mandate — Russian meddling in the 2016 elections — and forget the unrelated payments to various mistresses, which, however sordid, do not relate to that investigation. If Mr. Mueller does not bring the investigation to a swift conclusion, Mr. Trump could then consider using his favorite line: “You’re fired.”
