Faculty Blog

Faculty Blog: What the Improper Removal of Mueller Could Mean for Trump’s Presidency

President Trump has recently taken to Twitter to disparage Special Counsel Robert Mueller’s investigation of possible links between the Trump campaign and Russia during the 2016 election. Coupled with the Attorney General’s firing of former deputy director of the FBI Andrew McCabe days before his retirement, the President may be seeking to undermine Mueller’s credibility and to send him a message. But it also could be seen as a dry run for the next step: dismissal of Mueller himself. The difference is that the improper removal of Mueller before the completion of his investigation would be an abuse of power so profound that Congress should act immediately in response.

Congress could respond in two ways. The first would be to enact a new independent counsel statute, akin to the kind of legislation the U.S. Supreme Court determined was constitutional in the 1988 case of Morrison v. Olson. There, the Court confirmed that Congress has the power to protect an investigation from unwarranted executive branch interference by requiring good cause before the independent counsel can be removed, a decision that would then be subject to judicial review. There are details Congress would have to address, such as who ultimately would make the appointment decision, but the end goal would be to ensure that the Mueller investigation could continue to completion.

The second option would be the ultimate act of Congressional oversight in response to abusive presidential overreach: commencement of impeachment proceedings. Indeed, Republican Senator Lindsey Graham from South Carolina indicated as much when asked in an interview following the dismissal of McCabe, stating that the firing of Mueller without cause would “probably” be an “impeachable offense.”

A central tenet of our democracy, as the Supreme Court has repeatedly affirmed, is that no one – not even the President – is above the law. If the President’s firing of Mueller – a lawyer with extraordinary credentials, a sterling reputation, and whose appointment as special counsel was welcomed by both parties – were to go unchecked, we will have come dangerously close to realizing one of the framing generation’s great fears: rule by a government of men and not of laws.

The nation faced a similar crisis in the Watergate era. In 1973’s Saturday Night Massacre, President Nixon sought to rid himself of the special prosecutor who had been investigating his White House. Realizing this assault on the investigation jeopardized the core principle that no one, including the President and his closest advisors, is above the law, thousands of Americans expressed their outrage through telegrams, letters and phone calls to their representatives in Washington, D.C. Popular sentiment turned against the President, toward calls for impeachment; the moment marked the start of Nixon’s downfall.

The Nixon White House was under investigation for domestic crimes, including the burglary of the Democratic National Committee’s office and its ensuing cover-up. As bad as those crimes were, they did not pose a direct threat to the national security of the United States. Today, by contrast, Mueller and his team are investigating whether the Trump campaign coordinated with Russia in its efforts to undermine the U.S. electoral system, and whether Russia holds compromising information about the President, information that could be used to undermine our nation’s sovereign interests.

These questions demand answers. Any effort to end the legitimate investigation of these issues by firing Mueller would indicate President Trump believes he can act with impunity. The framers feared precisely this kind of chief executive. As Andrew Sullivan recently noted, the premise underlying their adoption of the impeachment option was straightforward: “If the president was to start acting like a king, he could be dispatched.”

Republicans in Congress would do well to remember that their predecessors recognized the framers’ foresight: forty years ago, they were heroes in the Nixon saga as they put nation above party. Today, those Republicans are justly remembered for their patriotism. We may soon be at such a critical moment again – perhaps more critical. Should it become necessary, will members of Congress stand up and re-affirm the principle that no one, including the president, is above the law? Nothing less than the security and future of the nation could be at stake.

Authors: New England Law | Boston Professors Tigran Eldred and Lawrence Friedman

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