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Nixon court case loophole puts Mueller investigation in danger

Will Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE subpoena President TrumpDonald John TrumpJoaquín Castro: Trump would be 'in court right now' if he weren't the president or 'privileged' Trump flubs speech location at criminal justice conference Comey reveals new details on Russia probe during House testimony MORE? Or will Matthew Whitaker preempt him by limiting the scope of the special counsel investigation?

A little discussed provision within the landmark Supreme Court decision in United States v. Richard Nixon, the Watergate era case that limited the scope of executive privilege in the face of a criminal trial subpoena, arguably allows the attorney general to “amend or revoke” the authority of the special counsel with impunity. The Supreme Court expressly stated that it is “theoretically possible” for the attorney general to amend or revoke the regulation defining the authority of the special prosecutor.

Under this directive, Whitaker arguably holds the lawful power to drastically curtail the scope of the special counsel investigation. Rather than remove Mueller and set off a constitutional crisis, Whitaker could simply amend the grant of jurisdiction that Deputy Attorney General Rod RosensteinRod Jay RosensteinGraham vows to push Trump’s AG pick through Judiciary Committee House GOP set to grill Comey McCabe, Rosenstein opened obstruction probe after Trump fired Comey, before Mueller was hired: report MORE gave Mueller last year by removing the authority to look into “any matters that arose or may arise directly” from the investigation.

Such a move would effectively eviscerate Mueller’s ability to investigate and/or prosecute any money laundering criminality while leaving the primary ‘Russia Investigation’ untouched. At the very least, it might force Mueller to hand-off any such investigation to the appropriate U.S. Attorney’s Office. This would more directly place those matters under Whitaker’s behind-the-scenes control as ActingMatthew G WhitakerComey’s confession: dossier not verified before, or after, FISA warrant Flake stands firm on sending a ‘message to the White House’ on Mueller Corsi finalizing criminal complaint against Mueller MORE Attorney General, which is still very much a net win for the president.

Limiting Mueller’s investigation to only ‘Russian collusion’ in the 2016 election is a fight the president would undoubtedly prefer. A fight over Russian collusion would be preferable to one involving obstruction of justice or money laundering, as Trump’s ‘no collusion’ defense mantra is already firmly entrenched within the public consciousness and there is no appetite for impeachment within the Senate on the issue.

The president currently holds plausible deniability relative to his personal participation in any alleged Russian conspiracy even with Roger StoneRoger Jason StoneHillicon Valley: Huawei executive facing possible US fraud charges | Dem blames White House for failure of election security bill | FCC investigating wireless carriers over coverage data | Assange rejects deal to leave embassy Mueller looking into Trump campaign adviser appearances on Russian state TV: report Roger Stone attacks Schiff as ‘full of schiff’ over perjury allegations MORE and Jerome Corsi’s anticipated indictment, Donald Trump, Jr.’s infamous meeting with Russians in Trump Tower and Paul ManafortPaul John ManafortFive takeaways from the bombshell Cohen, Manafort filings Cohen and Manafort pose new problems for President Trump Hannity downplays Cohen, Manafort filings: 'How will America ever recover?' MORE and Rick Gates’ cooperation. The likelihood Trump can plausibly deny a paper-trail laden money laundering allegation via the Trump Organization is not nearly as clear. Remember, Mueller granted the Trump Organization’s bookkeeper immunity to cooperate.

Contrast the legitimacy Nixon provides to restrain the investigation’s scope to its ‘true purpose’ with the maelstrom Whitaker would unleash upon his outright dismissal of Mueller. Still, Whitaker needs the threat of outright dismissal to make curtailment seem more reasonable. Perhaps this better explains Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump flubs speech location at criminal justice conference Sunday shows preview: Trade talks, Cohen sentencing memo take center stage Trump tells McConnell to let Senate vote on criminal justice reform MORE’s (R-Ky.) vehement opposition to the otherwise bipartisan Senate bill to protect Mueller.

Not only does the Senate bill limit a special counsel’s dismissal to instances of “misconduct, dereliction of duty, incapacity, conflict of interest or other good cause,” but the Senate bill also presciently specifies only an Attorney General “who has been confirmed to the position by the Senate, or the most senior Senate-confirmed officer of the Department … who is not recused” may dismiss a special counsel.

Whitaker cannot satisfy either requirement. However, in the Senate bill’s absence, Whitaker holds substantial legal cover to quietly, but overtly, restrict the scope of Mueller’s investigation pursuant to Nixon’s grant of authority.

Such a strategy would also allow Whitaker to openly embrace his prior public comments on Mueller’s probe. As Whitaker argued in his oft-cited CNN piece, “It does not take a lawyer or even a former federal prosecutor like myself to conclude that investigating Donald Trump's finances or his family's finances falls completely outside of the realm of his 2016 campaign and allegations that the campaign coordinated with the Russian government or anyone else. That goes beyond the scope of the appointment of the special counsel.”

Nixon’s loophole permits Whitaker to give the veneer of legal legitimacy to the president’s political view, with the intended benefit of shielding the president, his family and his businesses from far more perilous money laundering aspects of Mueller’s probe. This is what makes Nixon’s loophole so dangerous, and why it is so important for the Senate to protect the special counsel.

Chris Gagin is an attorney and director of Defending Democracy Together.