In Slow Burn, a podcast about Watergate, Slate writer and host Leon Neyfakh tells the story of the dedicated team of prosecutors who worked to contain the fallout of the Saturday Night Massacre. When news reached the lawyers that their boss, special prosecutor Archibald Cox, had been fired by Richard Nixon, many of them dropped everything they were doing and rushed to the office to try to salvage their investigative files, just before FBI agents arrived and sealed the place as if it were a crime scene. Carl Feldbaum, one of the young prosecutors, was there was with his wife. He had a novel idea for how to get key files out of the office: “I thought it was the safest thing to give her the evidence, which she stuffed into her jeans,” he recalled.
That’s not an ideal contingency plan. But those were simpler times, before personal computers and cloud technology and electronic court dockets. There’s no telling what lessons from history Robert Mueller, the special counsel investigating crimes associated with Russia’s interference in the presidential election, has adopted into his own investigative work. But if Donald Trump’s latest brooding and seething over the Russia inquiry is any indication, it is entirely within the realm of the possible that the president, a kind of Nixon-in-waiting, may fire Mueller before the investigation gets any hotter. As useless as that would be — investigations with a large bureaucracy behind them do not just disappear when the lead prosecutor leaves — it’s the reality of a president who remains ignorant about the firewalls within his own Executive branch.
This is not a drill. With reporting by the New York Times that Trump considered ousting Mueller in December and his early-morning Twitter rant on Thursday that he “would have fired” the special counsel had he really wanted to, we’re ever so close to what Lawfare’s Benjamin Wittes calls “the moment of actual confrontation” — a looming reckoning between a sitting president, and one who doesn’t really care much about norms or institutions at that, and a well-regarded prosecutor and public servant he hasn’t yet been able to fire. But not because it’s not in his instincts: James Comey, Sally Yates, and Preet Bharara never stood a chance because each knew and recognized that they served at the pleasure of the nation’s chief executive. And they were gone the moment he said so.
But Mueller, who was appointed under statutes and regulations binding on the Department of Justice, and the government as a whole, doesn’t operate in the same constitutional sphere as a presidentially appointed officer — no matter Sarah Huckabee Sanders’s assertion that the president “certainly believes” in his heart of hearts that he can fire the man probing his Russia connections. Trump believes a lot of things. But right now there’s a fierce academic discussion, far from settled by the courts, about what Trump may or may not do with the special counsel. Uncharted though the waters may be, the dominant view among experts is that Rod Rosenstein, the deputy attorney general, is the only one with the power to serve as a check on Mueller. The special counsel’s office said so itself in a recent court filing that characterized Mueller as a “subordinate officer within the Department of Justice” who is beholden to Rosenstein — all the while establishing, as Rosenstein has in public testimony, that he is the one “accountable” and “responsible for” the scope of the Russia investigation.
That court document, authored in part by a longtime career official who has argued more than 100 cases before the Supreme Court, said nothing about Mueller’s subservience to Trump, nor could it. The president’s own solicitor general, in a brief filed with the high court in an unrelated, wonky dispute over the constitutional status of administrative law judges, acknowledged how the removal regime that applies to Mueller is supposed to work: “The power to remove, being incident to the power of appointment, rests with the appointing authority absent an express statement to the contrary.” Later, the same brief adds: “Other ‘inferior Officers,’ whose appointments have been vested in ‘the Heads of Departments,’ may be removed by those Department Heads — who are themselves removable by the President.” (Don’t let John Yoo convince you otherwise. As Georgetown Law’s Marty Lederman shows, he’s dead wrong.)
Get it? That means no end-runs to giving Mueller the pink slip: Trump must go through Rosenstein, the same way Nixon went through a willing subordinate, Robert Bork, to fire Cox. That there exists a real legal constraint on the president to sack Mueller helps explains why we’re now hearing the likes of Steve Bannon and other Trump acolytes offer wild suggestions on how to stymie the special counsel’s investigation — up to and including canning Rosenstein, the special counsel’s true direct supervisor and someone who has backed his work at every step of the way. The White House seems aware that the law is not on its side: CNN reported Thursday that there’s a bizarre effort afoot to push out talking points to undermine Rosenstein. That’s the kind of petty thing you do when you’re losing on the merits, driving you to dig an even deeper grave of obstruction.
Assuming the worst-case scenario of firing Rosenstein — or maybe the best, because it would afford Trump the cleanest chance to appoint a crony to assert control over the probe — what then? Does it all get shut down and go away? Peter Carr, the special counsel’s spokesman, declined to comment when asked by New York what conversations, if any, Mueller’s elite team of prosecutors has had to protect its own work from presidential interference. But it’s not inconceivable that Mueller has already done his due diligence and has a plan or plans in place in contemplation of his own dismissal.
To wit: The multiple FBI raids on Michael Cohen’s home, office, and hotel room this week — overseen by prosecutors in the U.S. Attorney’s office in the Southern District of New York, which covers Manhattan — resulted from a referral from Mueller to that office. Bharara, who used to run the place before Trump showed him the door, acknowledged in his weekly talk show-cum-podcast that the existence of a wholly independent investigation out of a different office puts the Mueller probe, indirectly, on stronger footing. “I don’t see a way, legitimately or even pragmatically, that you can shut down a separate SDNY investigation once it is started. And boy, it is started,” Bharara said, using the acronym for his former office.
Because the investigation into Michael Cohen is nonpublic and preliminary — and as far as we know, unrelated to the broader Russia investigation — there’s no way to know what crimes, if any, he’ll be charged with, or whether he’ll be charged at all. But it is significant that the Manhattan U.S. Attorney’s office has evidence that it received from the Justice Department, which in turn served as a basis to gather more evidence of its own from Cohen directly, and that now Trump himself is so invested in the matter that he’s dispatched a lawyer to intervene in a New York case that may turn out to be nothing. Whatever federal prosecutors in New York have on Cohen, the president, or both, is significant enough to keep them on edge. And because the Southern District of New York is renowned for not taking orders from Washington all that easily, this is not something Trump can do much about.
The same would be true of the larger investigation, which has a criminal component now playing out in the courts, as well as a counterintelligence one that remains, in great part, a closely guarded secret. NBC News’ Pete Williams, who has covered federal law enforcement for the better part of the last 25 years, ran through several of the hypotheticals surrounding a Mueller firing and concluded that, in the end, Trump would pay a steep political price but the show would go on. “The probe would simply revert to the FBI and the Justice Department, where prosecutors and federal agents would continue the kind of work they were doing before the special counsel was appointed,” Williams wrote, matter-of-factly. Paul Rosenzweig, a former senior counsel in Kenneth Starr’s investigation into Bill Clinton, more or less landed in the same place. “It would come at severe political cost to the president and, quite likely, have relatively little actual effect on the current investigation,” he wrote for The Atlantic.
Indeed, Mueller’s office dropped a similar hint about the expected continuity of his work in a recent court filing in the Paul Manafort case, which is being spearheaded by one of his senior deputies, Andrew Weissmann, a veteran of the Justice Department known for his aggressive prosecutorial style. Weissmann, as the filing put it bluntly, “is a longtime, career prosecutor with the internal authority to conduct this prosecution, separate and aside from his role in the Special Counsel’s Office,” emphasis mine. You caught that? “Separate and aside.”
Mueller was deliberate from the outset of his appointment in choosing career lawyers and specialists with credentials and security clearances and relevant portfolios within the Justice Department that won’t vanish simply because their boss has been fired. Yessiree, Bob: Expect them to keep their heads down and continue the work. And to stay on their investigatory leads, to meet their court deadlines, and to attend any hearings they may be required to attend in the cases now public and active — against Manafort, Rick Gates, Michael Flynn, George Papadopoulos, and others that are now docketed with the court system. Trump can’t just flush all this work down the toilet. And should blanket pardons be in the offing — the only saving grace for an obstructor-in-chief — they’re ineffectual to stop potential state charges that may be in the works in New York or elsewhere.
All of this should be of great comfort to anyone fearing an impulsive Mueller or Rosenstein firing. Not because it may not happen, but because there are so many levels of government and moving parts and Department of Justice officials — to say nothing of the federal judges who are overseeing the active cases — working in tandem to ensure that the wheels of the special counsel’s operation keep turning. Call it the deep state at its finest. Under those conditions, even a Saturday Night Massacre–like ouster, as terrible as that would be, would be insufficient to stop the work already underway. For all we know, there may be already a Leon Jaworski–type replacement for Mueller waiting in the wings. He faithfully picked up where Archibald Cox left off, and we all know how that story ended.
