Since the appointment of Robert Mueller as special counsel to investigate ties between Russia and the Trump campaign, Donald Trump’s fury has steadily mounted. Trump has railed against Mueller’s investigation, repeatedly calling it a “witch hunt.” But last week, as Paul Manafort’s trial got underway and Trump expressed fear that his son, Donald Trump Jr., may be criminally implicated, the president’s rage boiled over.
Was Trump’s tweeted order that Attorney General Jeff Sessions “should stop this Rigged Witch Hunt right now, before it continues to stain our country any further” permissible under the “unitary executive” doctrine, or is it evidence of obstruction of justice by the president?
On March 2, 2017, after consultation with Justice Department officials, Sessions recused himself from the Russia investigation because of contacts he had with the Russian ambassador to the United States during the presidential campaign.
Later that month, in a meeting at Mar-a-Lago, Trump prevailed upon Sessions to un-recuse himself. Trump told his aides he needed a loyalist overseeing the Russia investigation. Sessions refused.
The task fell to Deputy Attorney General Rod Rosenstein to name a special counsel to lead the investigation. Rosenstein appointed Mueller in May 2017. Mueller’s mandate: to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” as well as “any matters that arose or may arise directly from the investigation.”
One month later, in June 2017, Trump ordered White House counsel Don McGahn to fire Mueller, but McGahn refused and threatened to resign. Trump backed down.
In early December of 2017, Trump tried again to have Mueller fired.
The pertinent Department of Justice regulation says a special counsel can “be disciplined or removed from office only by the personal action of the Attorney General,” and only “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good reason.”
Apparently aware of these grounds for removal of a special counsel, Trump tweeted that Mueller has a conflict of interest because of a fee dispute at Trump’s National Golf Club in Virginia; Mueller’s interview for FBI director before his appointment as special counsel; and Mueller’s prior employment at a law firm that represents Jared Kushner, Trump’s son-in-law.
But Rosenstein, the only person with power to fire Mueller, disagrees. Rosenstein told the House Judiciary Committee on June 28, 2018, that he is unaware of any “disqualifying” conflict of interest Mueller might have.
Nevertheless, the president’s legal team is relying on the “unitary executive” doctrine to justify Trump’s possible termination of the Mueller probe.
The “Unitary Executive” Theory of Presidential Power
The “unitary executive” theory is a radical right-wing concept of all-encompassing presidential power. Trump lawyer Marc Kasowitz wrote in a confidential memo to Mueller on June 23, 2017, that “the President also possesses the indisputable authority to direct that any executive branch investigation be open or closed because the Constitution provides for a unitary executive with all executive power resting with the President.”
On June 4, 2018, without citing any legal authority, Trump tweeted that the appointment of Mueller was “totally UNCONSTITUTIONAL!”
The unitary executive theory purports to be based on Article II of the Constitution, which says, “The executive power shall be vested in a President of the United States of America.” Proponents of the unitary executive say that Article II establishes a “hierarchical, unified executive department under the direct control of the President” who “alone possesses all of the executive power and … therefore can direct, control, and supervise inferior officers or agencies who seek to exercise discretionary executive power.”
But in Morrison v. Olson, the Supreme Court upheld congressional limitations on the president’s power to fire subordinate officers. In that case, the high court analyzed the attorney general’s ability to dismiss the independent counsel and held that the president does not necessarily have the power to direct inferior officers’ interpretations of the law.
In their comprehensive December 6, 2017, legal analysis, titled “Why Trump Can’t (Easily) Remove Mueller – and What Happens If He Tries,” Noah Bookbinder, Norman Eisen and Caroline Fredrickson note that even if Trump were to arrange Mueller’s dismissal, the Russia investigation would continue. They conclude:
President Trump lacks unilateral authority to fire Mueller. While President Trump might compel others to do so on his behalf or instruct the attorney general to revoke the [Department of Justice’s] special counsel regulations, the risks of doing so are prohibitive. History warns that he would be risking his presidency, not to mention increasing his exposure to charges of obstruction of justice.
Obstruction of Justice
The crime of obstruction of justice requires an attempt to halt an investigation with a corrupt intent.
There is already ample evidence that Trump obstructed justice. He fired FBI Director James Comey because he wouldn’t drop the investigation of National Security Adviser Michael Flynn’s ties to Russia.
After a June 2016 meeting with a Russian operative organized by Donald Trump Jr. to get dirt on then-candidate Hillary Clinton, the president drafted a memo lying about the subject matter of that meeting.
Moreover, on August 5, 2018, Trump again contradicted himself, admitting in a tweet, “This was a meeting to get information on an opponent, totally legal and done all the time in politics – and it went nowhere. I did not know about it!”
Trump’s tweet ordering Sessions to terminate the Russia investigation is strong evidence that the president corruptly intends to halt the investigation. That would amount to obstruction of justice.
The White House has confirmed that Trump’s tweets are official presidential statements. Indeed, Trump often uses his tweets to announce official policy, including his ban on transgender troops in the US military, sanctions against Turkey, and the firing of former chief of staff Reince Preibus and secretary of state Rex Tillerson.
Mueller is examining whether Trump’s tweets constitute attempts to obstruct the Russia investigation.
Will Trump Fire Mueller?
Trump may order Rosenstein to fire Mueller. If Rosenstein were to refuse, Trump could fire him. Trump could then order the individual next-in-line, right-winger Solicitor General Noel Franco, to dismiss Mueller.
That scenario calls to mind the infamous “Saturday Night Massacre” during the Watergate scandal, when President Richard Nixon fired Attorney Elliot Richardson after the latter refused to fire special prosecutor Archibald Cox.
Furthermore, Trump’s pressure on Sessions to fire Mueller raises an ethical issue. The president would be ordering Sessions to do something the latter is powerless to do as Sessions recused himself from the Russia investigation after consulting with Department of Justice ethics officials.
Trump would be instructing Sessions to do something unethical. If Sessions were to follow Trump’s command, the attorney general could be disciplined by the bar association that licensed him to practice law.
As Mueller’s investigation moves inexorably in the direction of the president and his son, Trump will become increasingly agitated. Will he orchestrate the firing of the special counsel? And if he does, what will be the legal and political fallout? Stay tuned.