It’s not so far-fetched to fear we are headed for a “Saturday Night Massacre Redux” only with a different cast of characters than Nixon brought us.
So how did we get to this sad, disturbing juncture in our history? Clearly it all pivots around one Donald J. Trump, our minority-vote president and his desire to end Robert Mueller’s investigation as Special Counsel.
[BACKGROUND: Although the terms “special counsel”, “special prosecutor” and “independent counsel” tend to be used interchangeably, they actually are not. Following the constitutional crisis caused by Nixon’s malfeasance, the Office of Independent Counsel was established by law in 1978 with the Ethics in Government Act. That law directed a three-judge panel from the US Court of Appeals in Washington, DC, to appoint the counsel or special prosecutor.
[That special prosecutor was typically given plenary powers with no checks or balances to contain it which led to far-afield investigations best exemplified by Ken Starr’s obsessive persecution of the Clintons that began as an investigation of a real estate deal, but exponentially exploded and segued to a stain on a little blue dress.
[There was bipartisan agreement those powers were too broad, and so the Independent Counsel Act was not renewed, and it expired in 1999. This led to the enactment of the Special Counsel Regulations, which empowers Robert Mueller’s investigation. Those regulations are spelled out here: https://www.gpo.gov/fdsys/pkg/CFR-2001-title28-vol2/pdf/CFR-2001-title28-vol2-part600.pdf ]
HOW CAN TRUMP GET RID OF MUELLER – OR AT LEAST STYMIE HIS INVESTIGATION
There are three broad forces that can interfere with Mueller’s investigation resulting in it either being terminated outright, or having it stymied to the point of futility:  Trump;  a high-ranking Justice Department official (generally the Attorney General, but since Jefferson Beauregard Sessions III has recused himself, it falls to the Deputy AG, Rod Rosenstein) or  Congress.
So, the main question is can Trump fire Mueller? The short answer is “Yes”. Under Article II of our Constitution, the president is given full plenary prosecution power, therefore all federal prosecutors work for the president.
But the special counsel regulations are very precise on how he or she can be removed:
The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General [or acting 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. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.
Of note is that if Rosenstein were to invoke that authority, the regulations also require him to notify the House and Senate Judiciary Committees as well as the ranking minority member of those committees. It’s prescient that that the authors of the Regulations included that proviso, which was specifically added to address the possibility that the majority party Chairpersons would be of the same party as the president, and either spineless enough or unwilling to act. Sound familiar?
And Deputy AG Rosenstein testified he would do so only for “good cause”. Based on his testimony, the possibility that Trump could convince him that Mueller had acted in such a manner to justify his removal was not only off the radar for Deputy AG Rosenstein, it wasn’t even conceivable to him.
Not only does Mueller enjoy an impeccable, bipartisan reputation and has not engaged in any inappropriate behavior that would justify his removal for “good cause” – but he was also granted a waiver by the Justice Department to lead the investigation despite a possible conflict of interest stemming from the fact that members of his law firm represent some of the people that are a focus of the investigation, including former Trump campaign manager Paul Manafort and Jared Kushner, the president’s son-in-law and senior adviser.
And although the Trump team is actively digging to try to find dirt on Mueller and his team, it’s universally agreed that Trump’s whining about campaign donations given by investigators to Democrats does not constitute a “conflict of interest” – and there’s case law to support that. Sorry, Donnie!
So, if Trump were to direct Rosenstein to fire Mueller, just as Nixon directed AG Elliot Richardson to fire Watergate Special Prosecutor Archibald Cox, Rosenstein would most likely resign like Richardson did, or Trump would fire him, like Nixon did with William Ruckelshaus, the next in line at the DOJ – which he has the power to do. And then just like Nixon, Trump could work his way down the chain of command to try to get to a toady like Nixon’s Robert Bork, who did fire Cox (and then that night was promised the next seat on SCOTUS by Nixon).
Or Trump, under the Federal Vacancies Reform Act of 1998, could appoint an interim attorney general – but it would have to be someone who was previously confirmed by the Senate for a Federal position.
(As noted, Sen. Chuck Schumer (D) has made it clear that Democrats will not allow Trump to use a recess appointment to insert a lackey AG to his liking, as Democrats will use the pro forma session option to prevent the Senate from going into the 10-day recess required to permit recess appointments.)
Or Trump could be brazen enough to actually repeal the Special Counsel Regulations and then fire Mueller himself. Back in 1999 when the regulations were put into place, that scenario was so unthinkable that is was not even addressed. But today with Trump, who has no moral rudder, it’s a distinct possibility.
This is the actual “Appointment of Special Counsel” statement by Deputy AG Rosenstein addressing Mueller’s appointment: https://www.justice.gov/opa/pr/appointment-special-counsel
And the actual enumeration of Mueller’s mandate:
It is widely believed that Mueller will broadly interpret the phrase “any matters that arose or may arise directly from the investigation.” Sorry, Donnie!
But it must be remembered that under the Special Counsel Regulations, the AG (or Deputy AG) retains the power to not only limit the scope of the investigation, but the Justice Department alone retains the right to either pursue the findings from Mueller’s investigation and bring criminal charges – or not. It’s hard to believe that Rosenstein would turn a blind eye if Mueller’s findings were compelling, but I no longer rule out any possibility.
Congress itself could seriously interfere – or prevent – the pursuit of criminal charges resulting from Mueller’s investigation by granting immunity to individuals in exchange for testimony. As you know, former national security adviser Michael Flynn has actively sought such immunity, and that could well make Flynn’s prosecution impossible.
If you recall, Oliver North was criminally convicted by an independent counsel during Reagan’s Iran-contra scandal. However, the US Court of Appeals for the District of Columbia Circuit threw out his conviction because Congress had granted him immunity. And even though that immunity didn’t directly cover action by the independent counsel, the court found that the special prosecutor could have benefited from “the fruits” of his testimony before Congress.
WHAT HAPPENS IF TRUMP SUCCEEDS IN GETTING RID OF MUELLER
The two most likely ways that Trump could get rid of Mueller is if he were able to find his “Bork” (now I know you’re thinking, given his anatomical … hmm, constraints related to his teeny, tiny hands, he already has problems finding his “Bork” – but let’s move on) in some form, and have him or her fire Mueller. The other is that he actually revokes the Special Counsel Regulations (which he theoretically could do) and fire him outright by himself.
One would hope that Rep. Adam Schiff (D) is correct that Congress would immediately enact an Independent Commission to investigate the same area that Mueller was pursuing. The problem is that it would not have the power to press criminal or civil charges – that still remains the domain of the Justice Department.
It’s also possible that Mueller could file a lawsuit seeking to vacate his firing, arguing that the Special Counsel Regulations are pointless if there’s no way to enforce them. But clearly that, like so much of what Trump is churning up, is unchartered waters.
But assuming the worst-case scenario and Mueller is removed, then what?
We need to remember that the FBI has already launched a formal counterintelligence investigation of its own into the meddling by Russia in the 2016 elections, and it’s over a year old. It will continue and there’s nothing Trump can do to stop it.
The FBI investigation is focused on “if any American citizen acted in concert with the Kremlin to commit acts of espionage, obstruction of justice, interference with the federal election process and other crimes.”
Clearly the aspect that has Trump the most worried is the money trail, and Mueller has the power to obtain his income tax returns. Just as Deep Throat advised concerning Nixon and the Watergate investigation, “follow the money” that still holds true today.
Mueller’s firing would definitely impede the progress of the investigation, because as Special Counsel he has broad investigatory powers including access to the Treasury Department’s FinCEN (Financial Crimes Enforcement Network) that concentrates on money laundering, as well as the IRS and other executive departments. So, Mueller’s team has focused on federal criminal acts, while FBI has focused more on espionage.
No doubt Mueller and his team have given some thought to contingency plans if he were to be terminated, as his position largely stems from a political rather than legal aegis. It depends on how far Trump is willing to ignore not only the rule of law, but the traditions of his office. If past is prologue, this is not an encouraging sign.
Mueller’s team has surely documented everything they’ve done, creating a large body of work product which Congress could demand in the event he was removed. It’s highly doubtful that Trump, or even a bevy of his lackeys, would – or even could – destroy all that evidence.
And even then, Mueller and his team could be called to testify before Congress to share what they had found to date. So there are mechanisms in place to protect and see that their findings are disseminated to people who could act on that information.
The main concern is that if somehow Mueller were removed, that Congress would continue in its current format of facilitating Trump’s endless outrages and make no effort to take proper action and impeach him. The fact that it’s very possible that Republicans will continue to put party before country is the real risk our nation faces.