Sessions’s replacement can destroy Mueller probe — without having to fire anyone

Can President TrumpDonald John TrumpCummings says Ivanka Trump not preserving all official communications Property is a fundamental right that is now being threatened 25 states could see severe flooding in coming weeks, scientists say MORE’s pick to replace Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsRosenstein still working at DOJ despite plans to leave in mid-March Juan Williams: Don't rule out impeaching Trump O'Rourke on impeachment: 2020 vote may be best way to 'resolve' Trump MORE fire special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE?

This was the question on everyone’s lips when Sessions resigned Wednesday — and Trump immediately tapped Session’s chief of staff Matthew Whitaker to take over as acting attorney general.

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This is an important question, to be sure. Prior to Tuesday’s democratic takeover of the House of Representatives, Mueller represented the only meaningful check on the Trump presidency, which has pushed constitutional, legal and ethical norms in ways that even the most cynical pundit could not anticipate on the day of Trump’s election.

But whether Whitaker can fire Mueller is the wrong question. With Trump, the real question is: If he orders Whitaker to fire Mueller, will there be any consequences? As Trump himself knows, without consequences for a breach, the rule of law is essentially meaningless.

Congress realized this too when, in the wake of the Watergate scandal, it passed the Ethics in Government Act of 1978, which effectively established a fourth branch of government — a so-called “independent counsel” — whose prosecutorial power was not under presidential control.

The statute was a reaction to the Saturday Night Massacre when President Nixon ordered his attorney general to fire the special prosecutor who had subpoenaed recorded conversations in the oval office.

The AG refused to comply and resigned. Nixon then directed the deputy attorney general — Rod RosensteinRod Jay RosensteinThe Hill's 12:30 Report: Trump steps up attacks on McCain Rosenstein still working at DOJ despite plans to leave in mid-March Graham says he'll probe Rosenstein's 25th Amendment remarks MORE’s predecessor at the time — to fire the special prosecutor.

The deputy AG also said no and resigned. The solicitor general, Robert Bork, finally agreed to do Nixon’s bidding. This prompted a political backlash, as well as a court decision declaring the firing unlawful. Months later, a Democrat-controlled Congress filed articles of impeachment. Nixon resigned before the case for impeachment went to trial in the Senate.

Interestingly, Bork did another thing after the firing: He rescinded the Department of Justice regulations establishing the procedures for appointing a special prosecutor in the first place. 

By contrast, when Kenneth W. Starr investigated President Clinton, Attorney General Janet Reno did not have the option of rescinding the law creating the independent counsel. Why? Because it was a congressional statute — not an agency regulation. 

The independent counsel statute eventually lapsed. Later, the DOJ regulations that currently govern the Mueller probe took its place. Because Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellRock the Vote President says Dem reform bill 'shines a light' on dark money The Hill's Morning Report - Trump's intraparty feuds divide Republicans Trump's attacks on McCain exacerbate tensions with Senate GOP MORE (R-Ky.) refused to bring new legislation to the floor to “protect” Mueller (i.e., by ensuring that the law establishing that probe holds up under presidential fire), history is now repeating itself. Lessons learned in Watergate might need to be learned again.

What does all of this mean for Whitaker’s power over Mueller going forward? Like the law that governed the Nixon special prosecutor’s appointment, if Whitaker rescinded the regulation altogether, there would be no “higher” law to stop him.

It’s not readily evident whether in that event Mueller’s ongoing investigation would evaporate along with it — or whether the existing probe would be “grandfathered in” somehow. But it doesn’t really matter. If things get to that point, team Trump will have surely figured out a way to put a final nail in the coffin.

Alternatively, Whitaker could fire Mueller, but only “for cause” — such as evidence of misconduct — which Rosenstein has publicly declared non-existent.

It’s legally murky whether he could fire Mueller if Whitaker is not a Senate-confirmed appointee. Yet again, that detail might not matter. It’s unclear whether Mueller could challenge his firing in court even if it violated the law (under the independent counsel statute, Starr explicitly had that option).

Another option would be for Whitaker to cripple the Mueller investigation without having to fire him. He’s on record as stating that Mueller’s investigation into Trump’s finances was beyond the scope of the special counsel’s referral; but that broadly-worded document is beside the point. As acting AG, he can simply issue a new referral that narrows the scope of the Mueller mandate, thereby gutting it of any force.

Moreover, although the regulations state that Whitaker can’t micro-manage Mueller’s day-to-day work, they allow him to question Mueller’s investigative and prosecutorial decisions — including, for example, whether to indict.

If Whitaker were to conclude that something Mueller wants to do “should not be pursued,” the regulations provide that he “shall notify Congress” (i.e., the chairman and ranking minority members of both chambers’ judiciary committees). Because Mueller isn’t plainly authorized to move forward without Whitaker’s consent, Whitaker’s decision would likely control, and a court could later refuse to hear the dispute. 

Even if Whitaker keeps his head down and lets Mueller continue with his work (at least ostensibly), he can always fatally shrink the special counsel’s budget for the next fiscal year. Or he can let it run its course, and then simply decide not to make Mueller’s final report public. Unlike the statute that governed the Starr probe, the regulations do not require that the report be produced to Congress, so the public could ultimately be left in the dark about what Mueller’s team learned regarding Russia’s vicious attack on the presidential election process in 2016.

If all this sounds bleak to those who’d like to see Mueller finish his work, it should. Mueller and Rosenstein are consummate professionals whose decisions are dictated by the facts and the rule law — not politics, self-preservation, or the “win.”

A good prosecutor’s calculus is simple: if the facts show that a law was broken, the criminal justice system will trigger consequences. For presidents, the consequences are primarily political. On this point, those Americans who tapped a Republican-controlled Senate to confirm Sessions’ replacement chose to look the other way. The consequences of that decision will be most deeply felt — not by those who may have committed crimes at the highest levels of national office — but by regular people, across the political spectrum, for generations to come.

Kim Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her forthcoming book,How to Read the Constitution and Why, will be in 2019. Follow her on Twitter @kim_wehle.