President Donald Trump “certainly believes he has the power” to fire Special Counsel Robert Mueller, White House Press Secretary Sarah Huckabee Sanders said during a press briefing on Tuesday.
Sanders’s remark came the day after FBI agents raided the home, office and hotel room of Trump lawyer Michael Cohen, a search that Cohen’s lawyer said came from a referral by Mueller. Following the raid, Trump told reporters, “I think it’s a disgrace what’s going on. We’ll see what happens…. Many people have said, ‘You should fire [Mueller].’”
Deputy Attorney General Rod Rosenstein appointed Mueller last May to oversee the FBI’s investigation into Russian meddling in the 2016 presidential election and possible coordination with the Trump campaign.
By law, the special counsel can be disciplined or removed “only by the personal action of the attorney general.” That can only happen “for misconduct, dereliction of duty, incapacity, conflict of interest or for other good cause, including violation of departmental policies,” the law states. The attorney general is required to notify the special counsel in writing and cite a specific reason for the removal. The attorney general in this case is Rosenstein, because Attorney General Jeff Sessions recused himself.
A Congressional Research Service report from last June clarified further: “To comply with the regulations, the attorney general himself must remove the special counsel, not the president or a surrogate.” The exception is if the attorney general is recused, according to the report, as is the case with Mueller. The report does not clearly clarify that exception, but it likely means only that the acting attorney general would have the power to remove the special counsel.
By saying that Trump “believes” he has the power to fire Mueller, Sanders might have been choosing her words carefully, as it’s possible Trump does in fact believe he has that authority. But she has previously made similar comments, saying last June that “while the president has the right to” fire Mueller, “he has no intention to do so.”
And there might be one exception that gives Trump authority to fire Mueller, according to Neal Katyal, the former acting solicitor general who helped write the special counsel regulations. Katyal has said that the president “can direct repeal of the” regulation because “the president controls the prosecution power.” But, he added, “he’d have to do so publicly.”
It’s also possible that Sanders was referring to Trump’s authority to request that Rosenstein fire Mueller.
But if Rosenstein refuses and Trump fires Rosenstein, oversight of the Mueller probe is supposed to go to another Department of Justice official, according to the agency’s order of succession. Because the associate attorney general position remains without a Senate-approved nominee following Rachel Brand’s resignation, and officials serving in temporary capacities cannot serve as acting attorney general, the solicitor general or one of the several assistant attorneys general would likely become responsible for the probe.
In testimony before the House Judiciary Committee in December, Rosenstein said he thought Mueller was doing a good job and that he would only fire the special counsel if there was “good cause.” As recently as March 12 he told USA Today, “I don’t believe there is any justification at this point for terminating the special counsel.”
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