The Easy Path to Firing Mueller

The easiest way for President Donald Trump to fire special counsel Robert Mueller is to begin by firing Deputy Attorney General Rod Rosenstein. The U.S. Department of Justice regulation that governs special counsel Mueller allows him to be fired only by the U.S. Attorney General and only for “good cause.” Since Attorney General Jeff Sessions has recused himself, Rosenstein now has the exclusive power to fire Mueller. If President Trump fires Rosenstein, as he can at any time without giving any reason, Solicitor General Noel Francisco would then have the power to fire Mueller for “good cause.”

It is easy to predict that Francisco would fire Mueller for “good cause.” We know Francisco’s views on the “good cause” limit on the power to fire Mueller because he described them in detail in the brief he filed in the U.S. Supreme Court in February in Lucia v. SEC. In that case, the issue centers on the analogous “good cause” exception to a 75-year-old statutory limit on the power of agency heads to fire administrative law judges (ALJs). Francisco devoted 17 pages in the government’s brief to an argument that he entitled, “Statutory restrictions on the removal of ALJs must be narrowly construed in light of serious separation of powers concerns.”

Francisco argued that a “good cause” limit on the power to remove officers of the United States conflicts with the power the U.S. Constitution vests in the President to “take care that the laws be faithfully executed.” Because of that conflict, he argued that “good cause” must be interpreted to allow the President or his immediate subordinates to fire any officer for virtually any stated reason as long as “factual evidence exists to support the…proffered good faith grounds.”

This lengthy official statement of Francisco’s views leaves no doubt that he would comply with any order of the President to fire Mueller for “good cause” based on virtually any cause identified by the President.

This sequence of events is reminiscent of the “Saturday Night Massacre” President Richard Nixon executed in 1973. When Archibald Cox, the special counsel who was investigating the President’s conduct in the Watergate affair, seemed to be nearing the smoking gun evidence that implicated the President in unlawful conduct, President Nixon ordered the Attorney General to fire Cox. But the Attorney General refused and resigned instead. President Nixon then ordered the Deputy Attorney General to fire the special counsel, but the Deputy refused and resigned too. Nixon then ordered the Solicitor General to fire the special counsel. He did so.

What will happen if Francisco repeats the conduct of his predecessor in the Nixon Administration? The answer is not at all clear.

Courts are unlikely to order the government to reinstate Mueller. The Supreme Court has never interpreted the term “good cause” in any context analogous to this situation. The Court has only held twice that an officer was wrongfully fired by a President—once in 1935 and once in 1958. In both cases, the President did not state any cause for removing either officer, so the Court had no occasion to interpret the “good cause” requirement that now exists in the Justice Department regulation and in some statutes. Moreover, the only remedy the Court provided to the unlawfully fired officers was back pay.

Any statute Congress might enact in an attempt to protect Mueller from being fired probably would not be effective for that purpose. It would have to include a provision that authorizes the President or one of his immediate subordinates to fire Mueller for “good cause” to be constitutional. We know that Francisco would interpret that statutory provision to require him to fire Mueller for virtually any reason President Trump identifies.

Of course, there is the possibility that Congress might respond to this series of events the same way it responded to the Saturday Night Massacre. There, following the firing of the special counsel, Congress began the process of impeachment and removal within several months. President Nixon resigned when it became apparent that the effort to remove him from office would succeed.

Today’s circumstances, however, differ from the circumstances that led to President Nixon’s resignation. It is hard to imagine that the U.S. House of Representatives, as it is presently composed, would impeach President Trump. That composition is one of the reasons why the 2018 election may be the most consequential midterm election in U.S. history.

Richard J. Pierce, Jr., is the Lyle T. Alverson Professor of Law at The George Washington University Law School.