California Forum

Yes, Trump can have Mueller fired. Thank the Clinton impeachment and Ken Starr

Special counsel Robert Mueller , shown here at a 2013 congressional oversight hearing, lacks the protections the law provided past special counsels, and could legally be fired at the behest of President Donald Trump. (AP Photo/J. Scott Applewhite)
Special counsel Robert Mueller , shown here at a 2013 congressional oversight hearing, lacks the protections the law provided past special counsels, and could legally be fired at the behest of President Donald Trump. (AP Photo/J. Scott Applewhite) AP

President Donald Trump has the constitutional authority, should he choose to exercise it, to have special prosecutor Robert Mueller fired. I think this would be a terrible mistake for the country and for the rule of law, but the president unquestionably has the power to do this.

Unfortunately, there no longer is a federal statute protecting the special prosecutor from dismissal by the president. After the Watergate scandal, Congress passed the Ethics in Government Act. It provided that a panel of three federal judges, designated by the Chief Justice of the United States, would appoint an independent counsel if there was credible evidence that the president or a high-level government official violated the law. The independent counsel could be fired only by the three judges and only for good cause.

The most basic element of the rule of law is that no one, not even the president is above the law. There is no way to ensure this without a thorough, independent investigation.

This was the process used to appoint Kenneth Starr, the special prosecutor for the Whitewater investigation. His investigation included whether President Bill Clinton had sex with White House intern Monica Lewinsky and ultimately led to Clinton’s impeachment for lying under oath.

In reaction to this, Congress chose to let the Ethics in Government Act, and the authority for an independent counsel, expire. I think this was a serious mistake; there should be a mechanism, independent of the president, to investigate allegations that the president or a high-level official has violated the law.

Mueller has no such legal protection against firing. Mueller was appointed by Deputy Attorney General Rod Rosenstein and therefore Rosenstein, or someone in his position, can fire Mueller. Usually it would be the Attorney General of the United States who would appoint a special prosecutor. But Jeff Sessions recused himself from the matter after it was revealed that he had lied in his confirmation hearings about his contact with Russians during the 2016 election campaign.

Trump cannot directly fire Mueller. But he can order Sessions to fire Rosenstein and replace Sessions if he refuses to do so. In this way, Trump can put someone in Rosenstein’s position to fire Mueller.

But the most basic element of the rule of law is that no one, not even the president is above the law. There is no way to ensure this without a thorough, independent investigation.

Contrary to Trump’s repeated claims, Mueller’s investigation is no witch hunt. To this point, Mueller has indicted 19 individuals for violating federal law. Five already have pleaded guilty, including former national security adviser, Michael Flynn, and top campaign aide, Rick Gates.

Paul Manafort, who ran Trump’s campaign for a time, has been indicted for money laundering, acting as a foreign agent without registering, and other serious crimes. Thirteen Russian individuals have been indicted for their illegal activities in connection with the 2016 election.

Nor is there reason to believe that Mueller and his staff have acted improperly in any way. Trump has railed against the search of the office and home of his lawyer, Michael Cohen, and has several times declared that this means that the “attorney-client privilege is dead.” First, the request for a search warrant, which was approved by a federal judge, came from the United States Attorney in New York (a Trump appointee), not Mueller.

Second, it is not clear that Cohen was functioning as an attorney for some of the tasks he performed for Trump. For instance, Cohen has said publicly that he was acting on his own when he paid Stormy Daniels $130,000 to remain quiet about her affair with Trump. Also, federal prosecutors have said that Cohen has been under investigation for months for a range of crimes that “largely [center] on his personal business dealings.”

Third, there is an exception to the attorney-client privilege, called the “crime-fraud” exception, which provides that a client’s communication to his or her attorney isn’t privileged if it was made it with the intention of committing or covering up a crime or fraud. Courts are very careful when allowing a search of a lawyer’s office or home, but being an attorney is not absolute immunity from investigation.

My hope is that despite all the rumors that Rosenstein and Mueller might be fired, Trump will let them do their jobs. Mueller and his staff need to conduct a thorough investigation, determine what happened in connection with Russian actions to influence the 2016 presidential election, and indict and prosecute those who broke federal laws. The rule of law demands no less.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law; echemerinsky@law.berkeley.edu.

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