What if Mueller is fired?

President TrumpDonald John TrumpGOP divided over impeachment trial strategy Official testifies that Bolton had 'one-on-one meeting' with Trump over Ukraine aid Louisiana governor wins re-election MORE grumbles about the “witch hunt,” claiming that the “chief witch,” special counsel Robert MuellerRobert (Bob) Swan MuellerSpeier says impeachment inquiry shows 'very strong case of bribery' by Trump Gowdy: I '100 percent' still believe public congressional hearings are 'a circus' Comey: Mueller 'didn't succeed in his mission because there was inadequate transparency' MORE, spends his days pushing his coven to “get Trump.” Still, nothing that Mueller says publicly reflects that. Indeed, he says very little (and leaks from his Russia collusion investigation appear to be nonexistent). He is frustratingly known for doing all of his talking in court, or in the papers he submits to the court.

The president, no doubt, would prefer that Mueller come into the daylight and make his claims — or intentions — to the news media. If he did, the president’s accusations about Mueller’s intentions would be far more believable (though Trump’s base apparently still believes most of what he tells them). Were Mueller to speak about the president publicly, Trump could more credibly argue that Mueller is “out to get him,” through any means and at any cost.

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He could tweet that Mueller’s team is his partisan political enemy (“See what I’ve been telling you? Sad!”). The best defense, and a good offense, may be to attempt to prove in the court of public opinion that Mueller’s actions are political, nothing more. Yet, day after day, Mueller denies the president that potential defense, and so the president is left to deflect in other ways.

But what about Mueller’s backstop? The anti-Trump crowd — those who are fearful that the president sooner or later will “fire” Mueller by getting some lackey at the Justice Department to pull the trigger, or that Trump will pardon every potential witness against him — has always believed that the New York attorney general is fully warmed up in the bullpen, with a grand jury empaneled ready to indict wrongdoers, including possibly the president. The president has no control over a state attorney general and cannot grant clemency to those convicted of state crimes.

As long as Eric Schneiderman and his successor, Barbara Underwood (appointed when Schneiderman left in disgrace), held that office, it was quite plausible that they could step up if Mueller were removed. Yes, both Schneiderman and Underwood were hardly shy in letting the public know that Trump was in their sights, and they actually commenced litigations against him.  

Had they indicted him, Trump would have had a reasonable argument in court — maybe not relying on the phrase “witch hunt,” but certainly alleging selective or bad-faith prosecution based on political considerations (Democrats out to get a Republican president). Still, as a practical matter, and given the way in which Schneiderman and Underwood handled their public statements about Trump, such a challenge likely would have failed.

But now, 2019 is here and the president’s potential contention remains. He would now face as an adversary the newly-elected New York attorney general who, in part, ran a campaign to “get Trump,” as did most of her primary opponents. Lest there be any doubt, at her inauguration ceremony, Attorney General Letitia James said: “I will work in a legal system where even the most powerful federal official in the country cannot use a loophole to evade justice.”  

Yes, it is true that the history of special prosecutors is rife with the valid claim that their job is to investigate a specific individual, usually a public official. But their charge historically has not been to indict the individual. Rather, they are charged with investigating, and with indicting only if a charge is warranted by virtue of the evidence they assemble. James will want to be able to tell a court, if it ever comes to that, that her goal once in office was simply to investigate and let the evidence fall where it may; thus, she could avoid placing Trump in just the litigating position he would want.

The New York Times, hardly a bastion of Trump enthusiasts, raised this precise state of affairs. How does the new attorney general deal with concerns about her alleged partisanship over this issue? It’s simple: She does it by placing the investigation in the hands of professionals, in her office or chosen by her, who are instructed that their duty is to fairness and balance to the president, his followers and any other targets who may be uncovered. Mueller is, of course, the paradigm for any prosecutor, despite what the president says about him.

We have great confidence that the new attorney general, a committed public servant, will  take appropriate precautions. If she does, she will follow in the tradition of her predecessors in that office who brought important cases that not only warranted prosecution, but also had the “appearance” of just that.  

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.”