Can Trump Pull a Bannon on Mueller?

Since Donald Trump is in a firing kind of mood, let’s recall that a federal employee named Robert Mueller is closing in on Trump’s own blood. From Buzzfeed on August 18:

Federal prosecutors working for special counsel Robert Mueller are focusing keenly on the president’s son Donald Trump Jr. and are trying to determine his intent when he attended a controversial June 9, 2016, meeting with a Russian lawyer, according to a source familiar with the investigation.

The question has been around for weeks: Can Trump fire Mueller?


Many have looked to federal statutes, rules, and regulations for the answer. But you won’t find the answer there, and if the Supreme Court ever gets hold of this issue, it probably won’t even look there.

Neither Congress nor any federal agency acting under authorization from Congress may change the system set up by the US Constitution. Only an amendment can do that. Failing that, the Constitution means whatever the Court says it means, and when the Court propounds a constitutional rule, any congressional stab at meddling with it is a stab into the wind.

It happens that the question whether Trump can fire Mueller is likely a constitutional question — it goes to the core of executive authority under Article II of the Constitution. So as nice as it is that some congresspeople want to tuck Mueller away where Trump can’t get him, there might be nowhere to hide.

WH3In a case called Myers v United States, the Court ruled that the president has the power under Article II, as the nation’s chief executive charged with faithfully executing the laws of the United States, to fire any purely executive officer — in Myers, a postmaster general.

In only a few cases can Congress abridge the power of the president to fire an officer of the United States. In 1933, President Franklin Roosevelt purported to fire a commissioner of the Federal Trade Commission (FTC) for the sin of being a conservative. But the law that created the FTC provided that an FTC commissioner could only be fired for cause (political bent, of course, not constituting cause for termination). The result was a case called Humphrey’s Executor v United States, in which the Court ruled that Congress could stop a president from firing an officer without cause if that officer performed quasi-legislative or quasi-judicial functions.

capitol2Quasi is just fancy legal speak for sort of. So what the Court was saying in Humphrey’s Executor was that an FTC commissioner, although he or she sort of works for the president, also sort of works for another branch — Congress. This is often the case with commissions (I tell students to watch out for commissions on exams — if you see a commission on a constitutional-law exam question, you’re being tested on the president’s power to fire someone.)

Consider, for example, the 9-11 Commission created by Congress in 2002. It was created not just to serve the president, but also to develop recommendations for Congress to act on; so commissioners sort of worked for the president, but also sort of worked for Congress. Similarly, the Federal Sentencing Commission was set up by Congress to establish some uniformity in sentencing in all federal courts around the country. Commissioners are appointed by the president and create guidelines to be used by judges. So the Sentencing Commission floats around among all three branches — it’s sort of executive, sort of legislative, and mostly judicial in nature. Ussupremecourtinterior

So Congress may hamstring a president’s ability to fire an officer of the United States only if that officer is like a commissioner — someone floating around two or three branches with no clear home in any one of them.

This brings us to Bob Mueller. Here is his job description:

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Bob Mueller is essentially a United States Attorney, only he is focused on a limited group of cases — those involving the Russian attack on the 2016 election and any possible collusion between the Russians and Team Trump. He performs prosecutorial functions.

The root of the word executive (again, in the constitutional sense, that’s the president) is execute. The president’s job is to execute the laws of the United States, be they the Constitution itself, treaties, or statutes enacted by Congress. There is no function more central to executing — enforcing — the laws of the United States than the prosecutorial function. Such a person — a person engaged exclusively in investigating and prosecuting violations of US law — does not float among the branches without any home. His home is in the Department of Justice, which is in the executive branch, and which performs quintessentially executive functions. That’s why the president can fire a US Attorney at will — just as easily as he fired Mike Flynn, Sean Spicer, Reince Priebus, and Steve Bannon.

This is why it was unwise to elect someone to the presidency who has as much regard for norms and protocols as he has for an aging spouse, which is to say none. Since Nixon and until Trump, it was unthinkabe that a president would kick up such a sandstorm of impropriety by dancing around so frantically in the dust of obstruction. But that wasn’t because presidents didn’t have the power to interfere with investigations; it’s because they had some sense of the historical precedents that such intrusions would set and what a mudslide such intrusions would precipitate as to public trust. But now here we are — with a compunction-free man in the White House who has an inclination and probably also the power to remove his own inquisitor. Just ask James Comey.

There once was a beast called an independent counsel, created by Congress and involving both the executive and judicial branches in its composition and work. But Congress, in its wisdom, allowed the independent counsel law to expire, replacing what was arguably a quasi-judicial or quasi-legislative entity with a mechanism more purely executive in nature. Bob Mueller is not an independent counsel; he’s a special counsel. Words matter.

This is not altogether bad news — that Trump probably does have the constitutional power to fire Mueller. If that’s what courts rule, then all they’re saying is that Congress can’t nibble its way around its own constitutional responsibilities and prerogatives with limp, impotent laws designed to protect a man by statute who cannot be protected under the Constitution.

If Trump fires Mueller, courts might just tell Congress to get its constitutional act together. You want to make Trump pay? Do your job. Impeach him.