President Trump faces political disaster if he tries to fire Mueller

President Trump faces political disaster if he tries to fire Mueller
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The outcome of the Watergate scandal demonstrates that if President TrumpDonald John TrumpMichael Flynn transcripts reveal plenty except crime or collusion 50 people arrested in Minneapolis as hundreds more National Guard troops deployed Missouri state lawmaker sparks backlash by tweeting 'looters deserve to be shot' MORE tries to fire Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE, he will likely suffer from the worst of two worlds: paying a stiff political price without ridding himself of the troublesome special counsel. In a little-noted episode of Watergate, on Nov. 14, 1973, federal judge Gerhard Gesell struck down as illegal the firing of special prosecutor Archibald Cox that President Nixon had orchestrated in the “Saturday Night Massacre” less than a month before.

Gesell ruled that Cox’s arbitrary sacking violated the Justice Department’s “good cause” regulation, which is akin to the one protecting Mueller today. Gesell’s decision was instantly moot, because the Justice Department had already appointed a new special prosecutor, Leon Jaworski, and Cox disdained any attempt to reclaim his position. “For me to make any legal claims under Judge Gesell’s decision,” Cox said, “would only divert attention from getting the job done.” Still, the decision stands as a red flag warning to President Trump.

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Gesell ruled that members of Congress who joined Ralph Nader as plaintiffs in the lawsuit, Nader v. Bork, had standing to challenge Cox’s firing. He found that the “discharge of Mr. Cox precipitated a widespread concern, if not lack of confidence, in the administration of justice. Numerous bills are pending in the Senate and House of Representatives which attempt to insulate the Watergate inquiries and prosecutions from executive interference, and impeachment of the president because of his alleged role in the Watergate matter including the firing of Mr. Cox is under active consideration.”

The judge’s substantive ruling turned on a regulation which he said, “granted the special prosecutor very broad power to investigate and prosecute offenses arising out of the Watergate break-in, the 1972 presidential election, and allegations involving the president, members of the White House staff or presidential appointees.” Under the regulation, “the special prosecutor will not be removed from his duties except for extraordinary improprieties on his part,” which the Justice Department had not demonstrated.

In October 1975, long after Nixon had resigned in the wake of a unanimous Supreme Court ruling, that he must relinquish the White House tapes to the special prosecutor, the D.C. Circuit Court vacated Judge Gesell’s mooted decision. Although the decision no longer has precedential standing, the Supreme Court in the tapes case validated the core tenet of Gesell’s finding, ruling that the regulation governing the office of the special prosecutor had “the force of law” and while it “remains in effect, the executive branch is bound by it.”

In the 1988 case of Morrison v. Olson, the Supreme Court affirmed that a provision of the now expired Ethics in Government Act protecting an independent counsel from dismissal without good cause “does not unduly trammel on executive authority,” but establishes the “necessary independence of the office of independent counsel.”

In accord with the Watergate precedents, Deputy Attorney General Rod RosensteinRod RosensteinSchumer to GOP: Cancel 'conspiracy hearings' on origins of Russia probe GOP chairman to seek subpoena power in investigation of Russia probe, 'unmasking' requests Rosenstein to testify as part of Graham's Russia investigation probe MORE granted Mueller broad investigatory powers and protected him under Title 28 of the Code of Federal Regulations. It provides that, “The attorney general may remove a special counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.”

If Trump fired Mueller without demonstrable good cause, members of Congress could petition a federal judge to invalidate the firing. Meanwhile, Trump would confront invidious comparisons with Watergate and calls for his impeachment. Republicans in the House would have to choose between beginning an impeachment investigation or risking their majority at the polls by continuing to enable the president. If Democrats regain control of the House in the 2018 midterms, they could launch an impeachment investigation without Republican votes.

Trump could attempt to use his presidential authority to abrogate summarily the “good cause” regulation and then fire Mueller. This blatant effort to thwart a federal investigation, would generate yet more political heat than a contrived “for cause” dismissal and would prompt lawsuits alleging violation of the protracted notice requirement for abolishing federal regulations. Such litigation in an unsettled area of the law could result in three adverse outcomes for the president: blocking the Mueller firing, curtailing his executive powers, and strengthening the obstruction of justice case against him.

Trump should realize that it was not the release of the Watergate tapes, but the “Saturday Night Massacre” that doomed Nixon’s presidency. It sparked outrage across the aisles in Congress and turned the American people in favor of impeaching the president. Together with other evidence of presidential misconduct, the firing of the special prosecutor prompted the House to vote 410 to 4 to begin the investigation that culminated a bipartisan vote for articles of impeachment in the judiciary committee, followed by Nixon’s resignation.

Allan J. Lichtman, Ph.D., is a distinguished professor of history at American University. He is the author of “The Case for Impeachment.”