Scholars assess President Trump’s claim of authority to fire special counsel Mueller.
Acting Attorney General Rod Rosenstein appointed Robert Mueller as special counsel to lead the federal government’s investigation into Russian interference in the 2016 U.S. presidential election. Since his appointment in 2017, Mueller has issued indictments against individuals from the United States, Russia, and the Netherlands, along with three Russian organizations. He has also secured several guilty pleas from former Trump campaign officials. President Donald Trump has expressed displeasure with the investigation, repeatedly calling it a “witch hunt.”
President Trump’s stance on Mueller’s investigation raises the question of whether the President might take steps to remove Mueller from office—and whether doing so would be lawful. U.S. Department of Justice regulations state that the U.S. Attorney General has the sole power to appoint a special counsel, and he may only remove the special counsel for “good cause.” Nevertheless, the White House has recently expressed confidence in the President’s ability to fire Mueller.
This series in The Regulatory Review analyzes who has the legal authority to remove Mueller from office and what the proper basis for such removal might be. The series includes three essays from prominent administrative law scholars: Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law at the George Washington University Law School; Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law at the George Washington University Law School; and Cary Coglianese, Edward B. Shils Professor of Law at the University of Pennsylvania Law School.
The Regulatory Review is pleased to present this series of essays on the President’s removal power.
April 16, 2018 | Richard J. Pierce, Jr., George Washington University Law School
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.”
April 17, 2018 | Alan B. Morrison, George Washington University Law School
I agree with much of what my friend and colleague Richard Pierce has written in his essay, but I partially dissent because Pierce, probably like President Donald Trump, has not figured out what comes next. Will Trump appoint someone to replace Mueller? If so, who? And what assurances will that person want before putting his or her neck into a Trumpian noose? Although Congress does not have a formal role in the selection of a replacement, many members on both sides of the aisle would almost certainly insist on holding a hearing and demand to know what happened and whether the Mueller replacement would continue an independent investigation.
April 18, 2018 | Cary Coglianese, University of Pennsylvania Law School
Presidents are not above the law. And the law states that special counsel Robert Mueller can only be removed “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” Granted, what exactly counts as “good cause” has never been squarely addressed by the courts. Presumably it means that a removal is based on a reason akin to “misconduct,” “dereliction of duty,” “incapacity,” or “conflict of interest.” More than that, it is absolutely clear that “good cause” demands a reason beyond just “anything goes.”