Will he say "you're fired!"
by digby
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| The GOP congress |
Neal Katyal served in the Clinton Justice department and wrote the DOJ rules on special counsels and then as Obama's solicitor general. He spoke with Terry Gross on NPR about Trump's claim in his NY Times interviews over the holiday about his power over the Justice Department:
“I have absolute right to do what I want to do with the Justice Department,” he said, echoing claims by his supporters that as president he has the power to open or end an investigation. “But for purposes of hopefully thinking I’m going to be treated fairly, I’ve stayed uninvolved with this particular matter.”
GROSS: So I'm going to ask you the question I'm sure you're most often asked which is, does President Trump have the power to fire special counsel Robert Mueller?
KATYAL: I think the answer to that is yes. And I think he can do it in, you know, either directly or indirectly. Some people think it can only be indirect. But I think, either way, there's a way in which it can get done. So these regulations are Justice Department regulations. They can be removed by another attorney general or an acting attorney general potentially. So the president could theoretically order Sessions to remove these regulations as a whole.
GROSS: Even though Sessions is recused from this investigation, he can be ordered to remove the regulations?
KATYAL: Well, possibly. I mean, I think it will get into a dicey question which the courts have never actually dealt with. But there is the possibility that the special counsel regulations are - I think the argument would go bigger and not just about any one special counsel but in general. I think the more prudent course of action - the administration hasn't been taking many prudent courses of action, but if they were to take the, you know, nuclear step of getting rid of the special counsel regulations, it would probably be wise for them as a belt-and-suspenders move to have - to order both Rosenstein and Sessions to remove the regulations.
Now, doing so - and this is something we struggled with from 1998 to 1999 in the drafting the regulations all the time. We knew this was a possibility. And, you know, as I said, there was one kind of key concern, which is the fear of a government cover up. And so you knew that there was a theoretical possibility the president could do it and not just a theoretical possibility, but we actually had that happen in our lifetimes because that's what President Nixon effectively did.
He said we're going to fire the special prosecutor Jaworski. And he ordered Justice Department officials to do so, and they refused. And he had to go down the line of succession until we got to the solicitor general at the time who allowed for the firing to take place. So you have that. But, you know, Arch's study, in conclusion, was actually the system worked pretty well. That was a horrible anti-democratic, anti-truth seeking, un-American thing to do, but it led to President Nixon's downfall. He had to take the heat - the political heat for ordering that step.
And similarly here, with the special counsel regulations - yes, to answer your question again, the president has the power to remove the special counsel. But if he does so, he will trigger a constitutional apocalypse the likes of which we have not seen since Watergate.
GROSS: What does that mean? People say it would trigger a constitutional crisis, but what exactly does that mean?
KATYAL: What that means is that the president, by firing the one entity that is empowered to fully investigate him free of ordinary political interference - if he short circuits that and he takes a step that is so fundamentally anti-truth, that I don't think that there's a way a president could survive that. And remember, you know, it's not as if a special counsel has the power to throw someone in jail by themselves no matter who they are.
And, you know, I would love to talk about who this special counsel is, Robert Mueller and his credentials, in a moment. But let's just say you had one that - an attorney general appointed a bozo. The bozo wouldn't be able to, you know, put someone in jail. The bozo first has to work with a staff and is supervised by the acting attorney general of the United States. Now, who's the acting attorney general of the United States - the Deputy Attorney General Rod Rosenstein. And who put Rod Rosenstein in power? It wasn't Barack Obama. It was President Trump. This is - Rosenstein is Trump's guy. He's the guy he put there.
GROSS: So if President Trump asked the Deputy Attorney General Rod Rosenstein to fire the special counsel Robert Mueller and Rosenstein refused, then he could - then Trump could fire Rosenstein, and his replacement would be asked to fire Robert Mueller and that could go on for a while. But the other possibility - or at least another possibility that President Trump could use would be to fire Rod Rosenstein and to replace him with somebody who would have a very favorable eye toward President Trump. So is that a scenario that you could see playing out and working under the guidelines for the special counsel as you wrote them?
KATYAL: So it is possible for the president to try to fire Rosenstein. Rosenstein is a presidential appointee. As I say, he's Trump's guy, and he can be removed by Trump. He'd have to be replaced in some way in order for the deputy attorney general to have any function. So you'd have to put someone else in place. Normally, that requires Senate confirmation to put that person in place.
And I would suspect that there would be incredible blood on the floor of the U.S. Senate - I mean, just the most divisive debate possible if someone was being confirmed to replace Rod Rosenstein who, by all accounts, has done a good job supervising the Mueller investigation. So I think, yes, there's the theoretical power that Trump has, but it'll be constrained by, in practice, the problem that he couldn't confirm a new person to that post.
One of the first Senate Republicans to call for legislation protecting special counsel Robert Mueller has stopped actively pushing that effort, sources on Capitol Hill say.
Sen. Thom Tillis, a North Carolina Republican in his first term, made headlines over the summer when he signed on to legislation with Sen. Chris Coons (D-DE) that would have shielded Mueller from being fired. But Tillis has largely abandoned the push to move that legislation forward while conceding that the bill doesn’t have the support to get through Congress. His office says he still supports the bill, but that the matter isn’t urgent since Trump says he doesn’t plan to fire Mueller.
“[T]he chatter that the administration is considering removing Special Counsel Mueller has completely come to a halt,” Tillis spokesperson Daniel Keylin said in an email to The Daily Beast. “In fact, the president and his administration have spoken favorably of Special Counsel Mueller’s professionalism and integrity, and recent reports indicate the investigation may soon come to an end.”
On Thursday night, The New York Times reported that Trump tried to fire the special counsel last summer. Keylin told The Daily Beast that despite the revelation, Tillis continues to trust that the president isn’t planning to fire Mueller, who is leading an investigation into potential coordination between the Trump campaign and the Russian government during the 2016 election.
Keylin noted that his boss didn’t start pushing for a bill to protect the special counsel until after Trump reportedly tried to fire him. Tillis introduced his bill with Coons in August, while Trump tried reportedly to fire Mueller in June. Those who are arguing that a firing is imminent, Keylin added, were trying to score political points.