What Mueller Can Do If Donald Trump Fires Him

Spurred on by some combination of a mortal fear of Robert Mueller's investigation and a desire for a tidy exoneration narrative, Donald Trump spent the weekend launching his boldest attacks yet on the special counsel's office. The president floated some baffling allegations of partisan bias about a team helmed by a lifelong Republican, and angrily concluded that the "the Mueller probe should never have been started" in a tweet that quickly dissolved into a bingo card of Fox News chyron fodder.

These statements, coupled with the recent revelation that Mueller would have been fired nine months ago if Trump had gotten his way, appear to be those of a man who has grown tired of waiting for the special counsel to finish his business, and for whom the idea of doing it himself is looking more appealing than ever. In the event that Trump's next Mueller-related tweetstorm makes more prominent use of his old Apprentice catchphrase, I attempt below to answer all your most pressing questions about what happens next.

Why can't Trump fire Mueller just like everyone else?

First, remember that it's technically a misnomer to say that Trump would fire Mueller—federal regulations empower the Attorney General, not the president, to oust a special counsel. Since Jeff Sessions' complicated relationship with the truth prompted him to recuse himself from Russia-related matters, that authority gets delegated here to Deputy Attorney General Rod Rosenstein, who appointed Mueller in the first place. If Trump wants to fire Mueller, he'll be depending on Rosenstein's willingness to carry out the boss' orders.

Why might Rosenstein be reluctant to do so?

Because unlike most other administration officials, who serve at the pleasure of the president and who—as Trump's people know well—may fired on a whim, the aforementioned regulations state that the special counsel may be removed only in an enumerated set of circumstances, which include "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation[s] of Departmental policies." The attorney general, or whoever stands in the attorney general's place, must also inform the special counsel in writing of the "specific reason" for their removal.

In other words, it's Rosenstein, not Trump, who has to sign his name to all of this. And while he authored that half-baked memo arguing that Comey had to be fired because he was too hard on Hillary Clinton, Rosenstein was roundly mocked afterwards for his participation in the charade. In light of that experience, he might not be eager to put his reputation on the line again, especially if the White House and the DOJ brain trust again fail to come up with something that doesn't pass the laugh test.

What could that excuse look like?

While it is difficult to project arguments that might be advanced by the world's most powerful paranoid old man, he could have Rosenstein try to portray, say, former FBI deputy director Andrew McCabe's wife's connections to former Virginia governor and longtime Clinton ally Terry McAuliffe—another favorite subject of recent presidential tweets—as evidence of some sort of conflict of interest. I don't know how he'd tie this to Mueller, exactly, but the existence of gaping plot holes has never been a major obstacle to this president's willingness to tell stories.

Trump has also suggested that the special counsel would cross a "red line" if he were to start poking around the family finances. Since reports indicate that this is exactly what Mueller has been doing of late, perhaps the president might try painting that as the type of "misconduct" that merits termination.

This is not a space in which any old excuse will do, though. The first approach, as explained in a recent Citizens for Responsibility and Ethics in Washington paper, risks inviting a lawsuit on Fifth Amendment grounds, particularly if Mueller's termination were justified by false statements that impugn his character. The problem with the second approach is that Rosenstein's order that appointed Mueller empowers him to look not only at potential collusion, but also at "any matters that arose or may arise directly from the investigation." If his work yields no signs of collusion but does turn up evidence of—and this purely a hypothetical—massive financial fraud, following up is very much within the scope of what he can do. It would be tough for Rosenstein to recast as "misconduct" something he authorized without looking like a giant stooge in the process.

What if Trump doesn't want to bother with "legal obligations"? What if he just orders Rosenstein to do it?

A fair question, given the president's previously-professed views on the ability of the justice system to limit what he can do. As argued by former solicitor general Seth Waxman, if Mueller is terminated without any explanation, he (or his subordinates) might try suing under the Administrative Procedures Act, which allows courts to prevent agencies (like DOJ) from taking action (like removing the special counsel) that is, among other things, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Since the law delineates the circumstances in which Mueller can be removed, Waxman argues, it affords a remedy in the event that those rules are broken, too.

Wouldn't this stuff take forever?

This is a federal courthouse we're talking about, so yes. But before any of Mueller's hypothetical cases could get underway, he would likely seek a preliminary injunction that prevents his firing from taking effect until the court can decide the matter on the merits. Judges evaluate requests for injunctive relief on a case-by-case basis, but among the many factors they consider is whether granting the injunction would serve the public interest—a prong on which one would assume Mueller could make a particularly strong argument in this instance.

If he wins, then for as long Mueller's attorneys and the Department of Justice battle one another over the intricacies of Administrative Procedure Act and the legitimacy of his termination, he would remain on the job, free to carry out his work as usual until the court says otherwise.

Would Mueller have any recourse outside the court system?

In theory, yes. He could plead his case to Paul Ryan, who would be understandably horrified that the President of the United States had so flagrantly attempted to undermine the rule of law in this country. Ryan and his fellow legislators could take action to reinstate Mueller and/or to enact more stringent limits on the ability of administration officials to remove him from office in the future, and could draft articles of impeachment on obstruction of justice grounds, at the very least.

In reality, probably not, because Paul Ryan is a spineless coward who will tolerate anything Donald Trump does if he thinks that doing so will boost his odds at taking health care away from poor people, and who would rather chuck his smartphone into the Potomac River than retain the ability to read the president's Twitter feed and incur an obligation to formulate a response worthy of the office he holds.

If Mueller gets "fired," but then gets to stay in office pursuant to a preliminary injunction, does his firing even matter?

Of course it does, because intent is just as important as the outcome. Attacking Mueller like this would give rise to the worst constitutional crisis since Richard Nixon's Saturday Night Massacre. It would be the most egregious demonstration yet of his utter contempt for the rule of law, and of his willingness to subjugate what is best for the country—in this case, an apolitical investigation into a foreign power's successful interference in our democratic process—to what is best for his ego. This should alarm every American, regardless of their political persuasion.

If Donald Trump gets dunked on by another court of law, how unhinged will his ensuing tweetstom be?

HONESTLY HE MIGHT NEVER TURN OFF CAPS LOCK AGAIN.

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