Tuesday, March 27, 2018

(UPDATED) Shootout At The Not OK Corral: What Happens If Trump Fires Mueller?

I have long believed that Donald Trump would not fire Robert Mueller despite his on-again, off-again threats to do so because saner heads would warn him that the collateral damage would be great.  But most of the saner heads have left the building, including much of his legal team, and the president's behavior has become so maniacal as he starts a trade war, threatens a hot war, undermines the FBI and reaches out to Fox News for fresh West Wing blood to suck on, that I am no longer so sure.  Which begs a very big question: What happens to the special prosecutor's wide-ranging investigation into Russia's interference in the 2016 election and the collusion of the Trump campaign and candidate himself if he gets the ax? 
Here are some things to consider:
By law Trump cannot fire Mueller and it would fall to a Justice Department subaltern, so the question becomes who would pull the trigger? 
A new acting attorney general is the best guess since AG Jeff Sessions has recused himself and, it is my belief, would resign if Mueller is summarily dismissed, as most certainly would Deputy AG Rod Rosenstein, who appointed Mueller in the first place and has shown flashes of independence in defending the special prosecutor's work. 
It would fall to the new AG to decide how vigorously -- or even whether -- to continue the Russia investigation, and whether to appoint a new special counsel.  In any event, a Mueller successor would do Trump's bidding. 
The Republican congressional majority will stay on the right side of Trump and the wrong side of history, so who will push back if Mueller goes? 
You can't turn around in this mess without bumping into Watergate analogies, but 1974 was then and 2018 is now, and while Richard Nixon faced congressional fortitude and a public outcry, today most GOP congressfolk and many senators are abject cowards and Trump doesn't give a damn about what people beyond his base think. 
Technically, congressional oversight (such as it is) related to the scandal would remain.  State prosecutions, which are immune to Trump's near absolute right to pardon perps for federal crimes, would proceed. 
But without the full force of a federal investigation, isn't it likely that all of Mueller's work -- including those 19 indictments -- will come to naught? 
Hypothetically, yes.  But there two very big wildcards, one of which is the 435 House seats being contested in the 2018 midterm elections.  That will have a clarifying effect on some Republicans, who already are in an uphill fight to keep control of the House and would find it difficult to campaign on all of Trump's accomplishments (sic) when they are constantly on the defensive. 
Democratic candidates, with the wind of public opinion at their backs, would have a potent weapon in crying obstruction, corruption and cover-up, further hurting GOP chances to hold onto the lower chamber. 
The other wildcard is little talked about.  Could Mueller seek a court injunction that would stop Trump in his tracks? 
Yes, at least temporarily while a federal judge decides the issue on its merits, chief among them being whether granting the special prosecutor injunctive relief would serve the public interest.  With the lower layers of the federal judiciary being friendly to Mueller, it is probable he would get relief, dragging the matter out as appeals are filed. 
The public-interest argument is Mueller's hole card, and despite the conservative bent of the Supreme Court, there is a decent chance that the special prosecutor would prevail there. 
Mueller might prevail there because the Supreme Court, despite a mixed record under Chief Justice John Roberts, has tended to uphold precedent and Trump's claim that Mueller is a rogue prosecutor won't float. 
Still, there is a great deal of uncertainty about firing a special counsel for the simple reason it just doesn't come up very often.  As in only once, when Nixon fired independent special prosecutor Archibald Cox in the 1974 Saturday Night Massacre.
But there are five certainties. 
First, Trump has yet again been his own worst enemy in driving off his more competent defense attorneys by refusing to follow their advice and going on the attack against Mueller, while his solicitations to the best and brightest of the white-collar criminal bar to defend him are being rejected.   
Second, no big law firm wants to represent a deadbeat like Trump for a reason that is not immediately obvious: Powerful female partners would strenuously object because of Trump's multiple extramarital affairs and sexual assaults and harassment. 
Third, Mueller's 19 indictments and any others he may issue before he is fired aren't going to be wiped out.  Neither are the plea deals he has extracted from Flynn, Gates and Papadopoulos.  Yes, Trump can pardon, but Mueller's work product otherwise will survive. 
Fourth, Mueller is a very smart dude, and there is no question he has conducted his investigation from the outset with the knowledge the president might force the Justice Department to fire him.  Does he have some tricks up his prosecutorial sleeve?  You bet he does.   
Finally, no matter what happens at the Not OK Corral (how about Scott Pruitt for attorney general?), if Trump does fire Mueller, the political crisis the president unleashes will be uncontainable, and a depleted defense team comprised of people sympathetic to his worst instincts will only make matters worse. 
Trump has met his match in Mueller.   
Mueller is a Marine combat veteran who earned a Bronze Star in Vietnam while Trump repeatedly ducked the draft.  Mueller has kept his head down and his opinions to himself during a long and distinguished career in service to America while Trump has been a loose and litigious cannon and everything is always about himself.
Trump got away with firing another senior law enforcement official -- FBI Director James Comey -- and while it might not happen overnight, firing Mueller "would be the beginning of the end of his presidency," in the words of the famously two-faced Republican Senator Lindsey Graham.  
But Graham is right.  Because while Mueller's future may seem to be in Trump's small hands, his own future hinges on what he does.

Click HERE for a comprehensive timeline on the Russia scandal
and related developments.

No comments: