{"id":28740,"date":"2017-07-27T08:52:41","date_gmt":"2017-07-27T15:52:41","guid":{"rendered":"http:\/\/www.politicsplus.org\/blog\/?p=28740"},"modified":"2017-07-27T09:16:15","modified_gmt":"2017-07-27T16:16:15","slug":"are-you-ready-for-saturday-night-massacre-redux","status":"publish","type":"post","link":"https:\/\/www.politicsplus.org\/blog\/2017\/07\/27\/are-you-ready-for-saturday-night-massacre-redux\/","title":{"rendered":"Are You Ready for “Saturday Night Massacre Redux”?"},"content":{"rendered":"

It\u2019s not so far-fetched to fear we are headed for a \u201cSaturday Night Massacre Redux\u201d<\/em><\/strong> only with a different cast of characters than Nixon brought us.<\/p>\n

So how did we get to this sad, disturbing juncture in our history?\u00a0 Clearly it all pivots around one Donald J. Trump<\/strong>, our minority-vote president and his desire to end Robert Mueller\u2019s<\/strong> investigation as Special Counsel.<\/p>\n

[BACKGROUND: Although the terms \u201cspecial counsel\u201d, \u201cspecial prosecutor\u201d and \u201cindependent counsel\u201d tend to be used interchangeably, they actually are not.\u00a0 Following the constitutional crisis caused by Nixon\u2019s malfeasance, the Office of Independent Counsel was established by law in 1978 with the Ethics in Government Act. \u00a0That law directed a three-judge panel from the US Court of Appeals in Washington, DC, to appoint the counsel or special prosecutor.<\/p>\n

[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\u2019s<\/strong> obsessive persecution of the Clintons<\/strong> that began as an investigation of a real estate deal, but exponentially exploded and segued to a stain on a little blue dress.<\/p>\n

[There was bipartisan agreement those powers were too broad, and so the Independent Counsel Act was not renewed, and it expired in 1999.\u00a0 This led to the enactment of the Special Counsel Regulations, which empowers Robert Mueller\u2019s investigation.\u00a0 Those regulations are spelled out here: https:\/\/www.gpo.gov\/fdsys\/pkg\/CFR-2001-title28-vol2\/pdf\/CFR-2001-title28-vol2-part600.pdf<\/a> ]<\/p>\n

 <\/p>\n

HOW CAN TRUMP GET RID OF MUELLER \u2013 OR AT LEAST STYMIE HIS INVESTIGATION<\/u><\/em><\/strong><\/p>\n

There are three broad forces that can interfere with Mueller\u2019s investigation resulting in it either being terminated outright, or having it stymied to the point of futility: [1]<\/em><\/strong> Trump; [2]<\/em><\/strong> a high-ranking Justice Department official (generally the Attorney General, but since Jefferson Beauregard Sessions III<\/strong> has recused himself, it falls to the Deputy AG, Rod Rosenstein<\/strong>) or [3]<\/em><\/strong> Congress.<\/p>\n

 <\/p>\n

[1]<\/em><\/strong><\/p>\n

So, the main question is can Trump fire Mueller?\u00a0 The short answer is \u201cYes\u201d.\u00a0 Under Article II of our Constitution, the president is given full plenary prosecution power, therefore all federal prosecutors work for the president.<\/p>\n

But the special counsel regulations are very precise on how he or she can be removed:<\/p>\n

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.<\/em><\/strong><\/p><\/blockquote>\n

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. \u00a0It\u2019s 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.\u00a0 Sound familiar?<\/p>\n

And Deputy AG Rosenstein testified he would do so only for \u201cgood cause\u201d<\/em>.\u00a0 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\u2019t even conceivable to him.<\/p>\n

Not only does Mueller enjoy an impeccable, bipartisan reputation and has not engaged in any inappropriate behavior that would justify his removal for \u201cgood cause\u201d \u2013 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.<\/p>\n

And although the Trump team is actively digging to try to find dirt on Mueller and his team, it\u2019s universally agreed that Trump\u2019s whining about campaign donations given by investigators to Democrats does not constitute a \u201cconflict of interest\u201d \u2013 and there\u2019s case law to support that.\u00a0 Sorry, Donnie!<\/em><\/p>\n

So, if Trump were to direct Rosenstein to fire Mueller, just as Nixon directed AG Elliot Richardson<\/strong> to fire Watergate Special Prosecutor Archibald Cox<\/strong>, Rosenstein would most likely resign like Richardson did, or Trump would fire him, like Nixon did with William Ruckelshaus<\/strong>, the next in line at the DOJ \u2013 which he has the power to do.\u00a0 And then just like Nixon, Trump could work his way down the chain of command to try to get to a toady like Nixon\u2019s Robert Bork<\/strong>, who did fire Cox (and then that night was promised the next seat on SCOTUS by Nixon).<\/p>\n

Or Trump, under the Federal Vacancies Reform Act of 1998<\/em>, could appoint an interim attorney general \u2013 but it would have to be someone who was previously confirmed by the Senate for a Federal position.<\/p>\n

(As noted, Sen. Chuck Schumer (D)<\/strong> 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<\/em> session option to prevent the Senate from going into the 10-day recess required to permit recess appointments.)<\/p>\n

Or Trump could be brazen enough to actually repeal the Special Counsel Regulations and then fire Mueller himself.\u00a0 Back in 1999 when the regulations were put into place, that scenario was so unthinkable that is was not even addressed.\u00a0 But today with Trump, who has no moral rudder, it\u2019s a distinct possibility.<\/p>\n

 <\/p>\n

[2]<\/em><\/strong><\/p>\n

This is the actual \u201cAppointment of Special Counsel\u201d<\/em><\/strong> statement by Deputy AG Rosenstein addressing Mueller\u2019s appointment: https:\/\/www.justice.gov\/opa\/pr\/appointment-special-counsel<\/a><\/p>\n

And the actual enumeration of Mueller\u2019s mandate:<\/p>\n

https:\/\/www.justice.gov\/opa\/press-release\/file\/967231\/download<\/a><\/p>\n

It is widely believed that Mueller will broadly interpret the phrase \u201cany matters that arose or may arise directly from the investigation.\u201d<\/strong>\u00a0 Sorry, Donnie!<\/em><\/p>\n

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\u2019s investigation and bring criminal charges \u2013 or not.\u00a0 It\u2019s hard to believe that Rosenstein would turn a blind eye if Mueller\u2019s findings were compelling, but I no longer rule out any possibility.<\/p>\n

 <\/p>\n

[3]<\/em><\/strong><\/p>\n

Congress itself could seriously interfere \u2013 or prevent \u2013 the pursuit of criminal charges resulting from Mueller\u2019s investigation by granting immunity to individuals in exchange for testimony.\u00a0 As you know, former national security adviser Michael Flynn has actively sought such immunity, and that could well make Flynn\u2019s prosecution impossible.<\/p>\n

If you recall, Oliver North was criminally convicted by an independent counsel during Reagan\u2019s Iran-contra scandal. \u00a0However, the US Court of Appeals for the District of Columbia Circuit\u00a0threw out his conviction<\/a>\u00a0because Congress had granted him immunity. \u00a0And even though that immunity didn\u2019t directly cover action by the independent counsel, the court found that the special prosecutor could have benefited from \u201cthe fruits\u201d of his testimony before Congress.<\/p>\n

 <\/p>\n

\u00a0WHAT HAPPENS IF TRUMP SUCCEEDS IN GETTING RID OF MUELLER<\/u><\/em><\/strong><\/p>\n

The two most likely ways that Trump could get rid of Mueller is if he were able to find his \u201cBork\u201d<\/em><\/strong> (now I know you\u2019re thinking, given his anatomical \u2026 hmm, constraints related to his teeny, tiny hands, he already has problems finding his \u201cBork\u201d<\/em> \u2013 but let\u2019s move on) in some form, and have him or her fire Mueller.\u00a0 The other is that he actually revokes the Special Counsel Regulations (which he theoretically could do) and fire him outright by himself.<\/p>\n

One would hope that Rep. Adam Schiff<\/strong> (D)<\/strong> is correct that Congress would immediately enact an Independent Commission to investigate the same area that Mueller was pursuing.\u00a0 The problem is that it would not have the power to press criminal or civil charges \u2013 that still remains the domain of the Justice Department.<\/p>\n

It\u2019s also possible that Mueller could file a lawsuit seeking to vacate his firing, arguing that the Special Counsel Regulations are pointless if there\u2019s no way to enforce them.\u00a0 But clearly that, like so much of what Trump is churning up, is unchartered waters.<\/p>\n

But assuming the worst-case scenario and Mueller is removed, then what?<\/p>\n

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\u2019s over a year old.\u00a0 It will continue and there\u2019s nothing Trump can do to stop it.<\/p>\n

The FBI investigation is focused on \u201cif 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.\u201d<\/p>\n

Clearly the aspect that has Trump the most worried is the money trail, and Mueller has the power to obtain his income tax returns.\u00a0 Just as Deep Throat advised concerning Nixon and the Watergate investigation, \u201cfollow the money\u201d<\/em><\/strong> that still holds true today.<\/p>\n

Mueller\u2019s firing would definitely impede the progress of the investigation, because as Special Counsel he has broad investigatory powers including access to the Treasury Department\u2019s FinCEN (Financial Crimes Enforcement Network) that concentrates on money laundering, as well as the IRS and other executive departments.\u00a0 So, Mueller\u2019s team has focused on federal criminal acts, while FBI has focused more on espionage.<\/p>\n

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.\u00a0 It depends on how far Trump is willing to ignore not only the rule of law, but the traditions of his office.\u00a0 If past is prologue, this is not an encouraging sign.<\/p>\n

Mueller\u2019s team has surely documented everything they\u2019ve done, creating a large body of work product which Congress could demand in the event he was removed.\u00a0 It\u2019s highly doubtful that Trump, or even a bevy of his lackeys, would \u2013 or even could \u2013 destroy all that evidence.<\/p>\n

And even then, Mueller and his team could be called to testify before Congress to share what they had found to date. \u00a0So there are mechanisms in place to protect and see that their findings are disseminated to people who could act on that information.<\/p>\n

The main concern is that if somehow Mueller were removed, that Congress would continue in its current format of facilitating Trump\u2019s endless outrages and make no effort to take proper action and impeach him. \u00a0The fact that it\u2019s very possible that Republicans will continue to put party before country is the real risk our nation faces.<\/p>\n

 <\/p>\n

RESOURCES<\/u><\/em><\/strong><\/p>\n

 <\/p>\n

https:\/\/www.gpo.gov\/fdsys\/pkg\/CFR-2001-title28-vol2\/pdf\/CFR-2001-title28-vol2-part600.pdf<\/a><\/p>\n

http:\/\/www.businessinsider.com\/can-trump-fire-special-counsel-robert-mueller-pardon-2017-7<\/a><\/p>\n

https:\/\/www.washingtonpost.com\/politics\/2017\/live-updates\/trump-white-house\/sessions-to-testify-before-senate-intelligence-committee\/how-trump-could-have-mueller-ousted-as-special-counsel\/<\/a><\/p>\n

http:\/\/theweek.com\/articles\/713648\/what-happens-trump-fires-mueller<\/a><\/p>\n

https:\/\/www.usnews.com\/news\/national-news\/articles\/2017-07-24\/what-happens-if-donald-trump-fires-special-prosecutor-robert-mueller<\/a><\/p>\n

http:\/\/thehill.com\/blogs\/pundits-blog\/the-administration\/343149-what-will-happen-if-trump-fires-mueller-or-pardons<\/a><\/p>\n

https:\/\/www.theatlantic.com\/politics\/archive\/2017\/07\/impeach-donald-trump-if-he-fires-robert-mueller\/534585\/<\/a><\/p>\n

http:\/\/www.cnn.com\/2017\/06\/13\/opinions\/what-would-happen-if-trump-tried-to-fire-mueller-callan\/index.html<\/a><\/p>\n

http:\/\/www.latimes.com\/opinion\/op-ed\/la-oe-mcmanus-mueller-fire-20170723-story.html<\/a><\/p>\n

https:\/\/www.bloomberg.com\/news\/articles\/2017-07-20\/trump-move-to-fire-mueller-likely-would-trigger-purge-at-justice<\/a><\/p>\n

http:\/\/www.reuters.com\/article\/us-usa-trump-sessions-scenarios-idUSKBN1AA2U9?il=0<\/a><\/p>\n

http:\/\/www.slate.com\/articles\/news_and_politics\/interrogation\/2017\/07\/what_happens_if_mueller_s_axed_an_interview_with_tim_weiner.html<\/a><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

It\u2019s not so far-fetched to fear we are headed for a \u201cSaturday Night Massacre Redux\u201d only with a different cast of characters than Nixon brought us. So how did we get to this sad, disturbing juncture in our history?\u00a0 Clearly it all pivots around one Donald J. Trump, our minority-vote president and his desire to […]<\/a><\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-28740","post","type-post","status-publish","format-standard","hentry","category-politics","category-5-id","post-seq-1","post-parity-odd","meta-position-corners","fix"],"_links":{"self":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts\/28740","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/comments?post=28740"}],"version-history":[{"count":0,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts\/28740\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/media?parent=28740"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/categories?post=28740"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/tags?post=28740"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}