Fire the special counsel? History shows it would be a bad idea

The use of special prosecutors to investigate allegations of wrongdoing regarding presidents or other high-ranking government officials dates at least to the administration of President Ulysses Grant. In modern times, special prosecutor’s investigation of President Richard Nixon’s involvement in the attempted cover-up of the Watergate break-in led to Nixon’s resignation from the office of the presidency.

In 1986, acting under the independent counsel provision of the now-expired Ethics in Government Act, Lawrence Walsh investigated the Reagan administration’s sales of weapons to Iran to secure the release of U.S. hostages and to fund Nicaraguan rebels known as Contras. Walsh’s investigation lasted more than seven years and led to the criminal convictions of 11 people, though all of the convictions were later reversed.

{mosads}In 1994, Kenneth Starr began to investigate allegations of fraud related to Bill and Hillary Clinton’s involvement in a failed Arkansas real estate deal of the Whitewater Development Corporation. This investigation later expanded to include President’s Clinton’s conduct regarding an affair with White House intern Monica Lewinsky and his statements under oath about the relationship, leading to Clinton’s 1998 impeachment.

By the time the independent counsel provision expired in June 1999, there was no support to reauthorize it. Instead, the U.S. Department of Justice set out to create a new regulatory scheme governing the appointment of special counsels. The concept attempted to reign in wide-ranging investigations and prosecutions of the independent counsel era.

Most recently, on May 17, Acting Attorney General Rod Rosenstein — standing in for the recused Attorney General Jeff Sessions — appointed Robert Mueller as special counsel to investigate Russian interference with the 2016 presidential election. Specifically, Rosenstein authorized Mueller to conduct the investigation confirmed by former FBI Director James Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, including any links or coordination between the Russian government and individuals associated with the Trump campaign.

Under those regulations, the attorney general, or the acting attorney general in cases in which the attorney general is recused, will appoint a special counsel when he determines that criminal investigation of a person or matter is warranted and that investigation or prosecution by a U.S. attorney’s office or a division of the DOJ would present a conflict of interest, and that it would be in the public interest to appoint an outside special counsel to assume responsibility for the matter.

To be named as special counsel, an individual shall be a “lawyer with a reputation for integrity and impartial decisionmaking,” with appropriate experience to ensure that the investigation is conducted properly and that prosecutorial decisions are made with an understanding of criminal law and DOJ policies.

The jurisdiction of the special counsel is established by the attorney general through a specific factual statement of the matter to be investigated. The special counsel’s jurisdiction also includes the authority to investigate and prosecute federal crimes committed in the course of, and with the intent to interfere with, the special counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses. Rosenstein’s appointment of Mueller also authorizes him to investigate any matters that arise directly from Mueller’s investigation, which would include allegations that President Trump or his associates have acted to attempt to obstruct the Russia investigation.

The special counsel may request the assignment of DOJ employees to assist his work or, if necessary, may request that additional personnel be hired from outside of the DOJ. To date, Mueller has hired at least 13 attorneys to work on his investigation.

Generally, the special counsel shall, within the scope of his jurisdiction, exercise the full power and independent authority to exercise all investigative and prosecutorial functions of any U.S. attorney. Except as provided in the enabling regulations, the special counsel has the discretion to determine whether and to what extent to inform or consult with the attorney general or others in the DOJ about the manner in which he conducts his duties.

Mueller may prosecute federal crimes arising from his investigation, if he believes it to be necessary and appropriate to do so. Exercising the power of a U.S. attorney also includes the power to issue subpoenas for testimony and for documents to targets of the investigation within the executive branch, up to and including the president.

The special counsel is not subject to the day-to-day supervision of any DOJ official. However, the attorney general may request that the special counsel provide an explanation for any investigative or prosecutorial step, and may conclude that the special counsel’s proposed action is inappropriate or unwarranted under DOJ practices.

The special counsel may be disciplined or removed from office only by personal action of the attorney general, who may remove a special counsel only for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of [DOJ] policies.” Recent comments in the media by President Trump’s surrogates suggesting that the president has considered or is considering attempting to fire Mueller have led to a debate about the feasibility of such an action.

Although commentators and academics are divided, the majority of experts argue that President Trump cannot himself remove Mueller from the special counsel role because the statutory power to appoint a special counsel resides with the attorney general, and well-established federal law holds that the power of removal goes along with the power of appointment. Therefore, a president generally has no power to remove officers appointed by a department head, absent congressional direction otherwise. Secondly, the removal provision of the regulation under which Mueller was appointed requires that a special counsel may be removed only by the personal action of the attorney general.

This means that, effectively, the only way that President Trump can cause the removal of Mueller from the special counsel role is to have Rosenstein, as acting attorney general, fire Mueller. And Rosenstein would be required to follow the strict standard for removal of the special counsel regulation noted above, because this regulation has the force of law for so long as it is in effect.

Thus, the only way for Mueller to be fired without a showing of cause or affirmative misconduct would be for the DOJ to attempt to rescind the special counsel regulations, which, although theoretically possible, would undoubtedly create a political firestorm. Moreover, Rosenstein has himself testified that he is the only person who can fire Mueller, and that if President Trump asked Rosenstein to remove Mueller, he would not follow such an order if no good cause existed.

A refusal by Rosenstein to fire Mueller without good cause would then place President Trump in the position of having to remove Rosenstein to find someone who would accede to his wishes and either find “good cause” or attempt to fire Mueller without meeting this requirement. This situation would harken back to the infamous “Saturday Night Massacre” of 1973, in which President Nixon ordered Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus to fire Watergate special prosecutor Archibald Cox.

Both men refused to do so and instead resigned, causing the role of attorney general to fall to Solicitor General Robert Bork, who complied with Nixon’s request and fired Cox. Again, the political repercussions of such a chain of events likely preclude President Trump from taking similar steps in regard to Mueller.

Simon H. Bloom is a partner at the Atlanta law firm of Bloom Sugarman. He has been an adjunct professor at Emory University School of Law for the past nine years. Troy R. Covington serves as counsel for Bloom Sugarman.

The views expressed by contributors are their own and are not the views of The Hill.