Everybody and his sister seem to be going around saying that if Trump fires Special Counsel Robert Mueller, we would face a constitutional crisis. Senator Mark Warner even took to the floor of the Senate to warn us. He said the crisis would be created by Trump’s action in placing himself above the rule of law.
Would this action trigger a constitutional crisis? What exactly is a constitutional crisis? According to Julia Azari (https://twitter.com/julia_azari) and Seth Masket (https://twitter.com/smotus), in an article for FiveThirtyEight, there are four types of constitutional crises. However,
True constitutional crises are rare. The Constitution is set up so that power is shared between the president, Congress and the courts, and between the federal government and the states. This cuts down on vacuums where no one has clear authority, instead creating situations where multiple people or institutions are empowered to act. Serious constitutional crises occur when our institutions are rendered ineffective, which is usually about politics more than process, and often has less to do with how institutions were designed than with how legitimate they are perceived to be.
First, let’s make clear that Trump cannot personally fire Bob Mueller. Mueller was appointed by Assistant Attorney General Rod Rosenstein after AG Jeff Sessions recused himself from the Trump/Russia investigation, and by the terms of the appointment, Rosenstein may fire Mueller only under certain circumstances.
The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal. Link
Rosenstein has made clear that he sees no grounds for firing Mueller. But Trump can fire Rosenstein, and keep firing people until he finds his own Robert Bork. (If you don’t remember Bork, he was the man Nixon finally found to fire Archibald Cox, the Special Prosecutor investigating him.)
But just as Nixon’s action did not trigger a constitutional crisis, neither would this action. In fact, with a GOP Congress, it might not even trigger impeachment proceedings.
Asha Rangappa at Just Security provocatively writes that Trump may not even have to fire Mueller, if he can hobble him instead.
Removing Rosenstein and replacing him with a DAG who is at the very least more sympathetic to Trump could have drastic repercussions on the investigation. The new DAG could burden the Special Counsel with a requirement to provide an explanation for every move he makes, and then decide that they aren’t necessary or appropriate. In fact, since Mueller is required to provide the DAG with at least three days’ notice in advance of any “significant event” in the investigation, she would have plenty of time to intervene and challenge Mueller’s actions (and a less scrupulous DAG could even leak Mueller’s plans to the White House or others). A new DAG would even have the ultimate—er, trump card: she could decide at some point that the investigation should not even continue at all.
If Trump did this, there would be no constitutional crisis. Congress could rewrite the regulations to stop the micromanagement, of course. Fat chance.
Philip Bump, writing for the Washington Post, sees this scenario as possible:
In other words, axing Mueller might not be necessary anyway, especially because doing so, directly or indirectly, would begin a massive and not necessarily successful legal fight, trigger a strong negative public reaction and almost certainly not end the investigation anyway. Trump may believe the inquiry is wrapping up soon, which doesn’t seem to be the case, but it may be politically wiser to simply wait it out, continuing to undermine those involved in hopes of dampening public acceptance of any ultimate findings or charges. That seems to be the more likely course of action at the moment and the one that the White House is pursuing.
My personal opinion, for what it’s worth, is that Trump, in one of his midnight tirades, will order Rosenstein to fire Mueller, Rosenstein will resign or be fired, and Trump will go down the line until he finds his Bork. And it will happen on a Saturday night. He won’t be able to resist.