April 13, 2018

In the NYT "Daily" podcast recently, the host Michael Barbaro said flatly that Trump does not have the power to fire Mueller...

... so it's interesting to see an op-ed in the Times today, "Of Course Trump Can Fire Mueller. He Shouldn’t." It's by lawprofs John Yoo and Saikrishna Prakash (and I'm not going to look at the comments to see what I assume is a lot of negativity toward Yoo).

It's hard to link to something I remember hearing in a podcast, but I think it was this episode. I was disheartened to hear Barbaro — whom I like a lot and consider unusually sober and fair — present what is a difficult legal question as if it had a known and agreed-upon answer and to imply that Trump was deceitful or ignorant to claim the power to fire Mueller.

Yoo and Prakash lay out the other side of the question, the side that favors greater Executive Power:
[C]ritics insist that Mr. Mueller enjoys protection under Justice Department regulations, which provide that the special counsel may be “removed from office only by the personal action of the attorney general” for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.”

According to this view, Mr. Trump must convince Rod Rosenstein, the acting attorney general, to fire Mr. Mueller. If Mr. Rosenstein refuses, Mr. Trump can fire him and replace him with someone willing to do the dirty work. Alternatively, the president could order Attorney General Jeff Sessions, who has recused himself from the Mueller probe, to rescind the regulations, which date back to 1999, and then fire Mr. Mueller.

But this narrow view of the president’s options rests on a misunderstanding of basic constitutional principles. Ever since the founding, presidents, Congresses and the Supreme Court have recognized that the chief executive has constitutional power to remove executive officers....

A regulation issued by the Justice Department should not be read to limit the president’s constitutional power to remove officers....
Congress is considering a bill that would purport to protect Mueller from firing, but even assuming that did become a statute, it would be subordinate to the Constitution, which gives the President the power to "take care that the laws be faithfully executed." There is Supreme Court case law on that subject  — Morrison v. Olson (1988), about the now-defunct independent counsel law (Congress's answer to Watergate).  It's hard to picture Morrison v. Olson getting overruled, but that's not the issue unless and until Congress passes the bill (and wouldn't Trump veto it? Perhaps not!).

By the way the Yoo and Prakash title — "Of Course Trump Can Fire Mueller. He Shouldn’t" — reminds me of the great old Nixon quote: "We can do that - but it would be wrong."

45 comments:

Michael K said...

Another "Tenure in Office Act." Does no one know history anymore ?

David Begley said...

This entire firing speculation is silly.

Trump should do what Scott Johnson at Power Line and Rush Limbaugh recommend: Pardon every American indicted and investigated by Mueller. The investigation is then over. This witch hunt has always been political; not criminal. The pardons would then make Trump the issue in the 2018 elections (he is already). If the GOP holds the House, then this thing is over and Trump can then govern.

This is the solution. Don't be surprised if Trump does it.

Achilles said...

It is only republican presidents that cannot fire people in their branch of government.

The executive branch employees become independent when a republican is elected. It is in the constitution.

Dickin'Bimbos@Home said...
This comment has been removed by the author.
Achilles said...

Trump just pardoned Scooter Libby.

Bush must feel like a sad sack at this point.

rcocean said...

So, the President can fire the AG, and the DAG. But can't fire someone appointed by the DAG.

Doesn't sound right to me.

And SENATE is moving to protect Mueller. Why would Ryan help them out?

Its crap like this that will cause the R's to lose in November. They don't have time, or can't get the votes, to do anything their base wants. But they have plenty of time to get together with Chuck Schumer to hamstring Trump.

Owen said...

Prof A: "...but that would be wrong." I am another member of the Class of '51 and I remember Nixon saying that: both the words and his intonation. Thanks for the memory!

Earnest Prole said...

The term executive means nothing if it does not include the power to hire and fire. Whether a particular firing is a wise idea is a different question.

Dickin'Bimbos@Home said...

Robert Mueller's forgotten surveillance crime spree

"When Robert Mueller was appointed last May as Special Counsel to investigate Trump, Politico Magazine gushed that “Mueller might just be America’s straightest arrow — a respected, nonpartisan and fiercely apolitical public servant whose only lifetime motivation has been the search for justice.” Most of the subsequent press coverage has shown nary a doubt about Mueller’s purity. But, during his 11 years as director of the Federal Bureau of Investigation, Mueller’s agency routinely violated federal law and the Bill of Rights. "

...

Inga said...

“Trump should do what Scott Johnson at Power Line and Rush Limbaugh recommend: Pardon every American indicted and investigated by Mueller. The investigation is then over.”

Sure he could do that. But can he pardon himself?

15 expert’s on the question of Presidential self pardon.


rcocean said...

Another "Tenure in Office Act." Does no one know history anymore ?


Those Radical Republicans ran wild in the late 1860s. They impeached Johnson, and screwed around with the SCOTUS and basically made hash of the "Balance of power" between the three branches.

But that's the constitution. If you read it, 2/3 of Congress can do pretty much anything.

Beach Brutus said...

Michael K at 10:08 -- that was my thought too, making the piece's statement -- "Ever since the founding, presidents, Congresses and the Supreme Court have recognized that the chief executive has constitutional power to remove executive officers...." inaccurate. The Radical Republicans used the Tenure in Office Act to impeach Andrew Johnson when he defied them and fired Sec. of War Stanton. Of course he was acquitted in the Senate (narrowly) and only later did SCOUTS hold the Act an Unconstitutional infringement by the Congress on the Executive's inherent powers.

Dickin'Bimbos@Home said...

At what point will the tax payer funded fraud that is Clinton-Mueller end?

rehajm said...

Barbaro shattered his leg in the Preakness. Despite valiant efforts to save him the damage was too severe.

Owen said...

David Begley @ 10:12: Great advice and a worthy prediction. I agree that when Trump is apparently stymied, he goes for the Gordian knot solution and just turns over the board. At worst he is no worse off; often he is marginally better; sometimes he is way better. Why not use such a strategy? The only downside is being accused of being a poor sport, and as we all know, that accusation doesn't wash with him.

Pass the popcorn.

rcocean said...

In 1926, a similar law (though not dealing with Cabinet secretaries) was ruled unconstitutional by the United States Supreme Court in the case of Myers v. United States, which affirmed the ability of the President to remove a Postmaster without Congressional approval.

In reaching that decision, the Supreme Court stated in its majority opinion (though in dicta), "that the Tenure of Office Act of 1867, insofar as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid".

Dickin'Bimbos@Home said...

What is Mueller investigating again?

We were told Russian-Trump collusion. Where is it?

Hagar said...

This is all political and legal issues mean nothing except as potential political ammunition, so, no, Trump cannot fire Mueller. The farce has to play on until it collapses by itself for lack of further political usefulness.
The Democrats salivate at the thought of Trump firing Mueller because it worked out so well for them with Nixon in 1974, but that is also why Trump won't repeat the mistake in 2018.

rcocean said...

"At what point will the tax payer funded fraud that is Clinton-Mueller end?"

Probably after the D's gain control of the House in November.

Then, the report can used for impeachment.

Michael K said...

Blogger Achilles said...
Trump just pardoned Scooter Libby.

Bush must feel like a sad sack at this point.


The LA Times comments were hysterical. Nobody on the left knows anything, as we see here every day. Hi, Inga.

NorthOfTheOneOhOne said...

Trump isn't going to fire Mueller (or try to) before midterms. Doing so would send the left into hysteria and increase their chances of picking up seats. Mueller should probably throw in the towel, but he won't until after midterms. Admitting that Trump didn't collude with the Russians would send the left into a near suicidal frenzy and suppress voter turnout.

Nobody's doing anything until after November.

Michael K said...

Those Radical Republicans ran wild in the late 1860s. They impeached Johnson, and screwed around with the SCOTUS and basically made hash of the "Balance of power" between the three branches.

They also gave us the Klan and the whole 50 year "Lost Cause" myth in the South.

We are still dealing with the consequences of John Wilkes Booth.

rcocean said...

"We were told Russian-Trump collusion. Where is it?"

I think the whole point was to able to rummage around in Trump's campaign messages, documents, and files under the pretense of "Collusion" and then pass off any juicy tidbits to other Federal DA's for prosecution.

ITs the greatest Fishing expedition in POTUS history.

Now, we have Trump's lawyer files being seized and examined for any criminal matters or embarrassing smoking guns. Of course, we're assured they will respect attorney client privilage and narrow their scope - but who believes that?

Michael K said...

Mueller should probably throw in the towel, but he won't until after midterms. Admitting that Trump didn't collude with the Russians would send the left into a near suicidal frenzy and suppress voter turnout.

Agreed. The GOP Congress probably committed suicide with that "Omnibus" spending bill. That will suppress voter turnout for the GOP.

I always vote and I like Martha McSally in AZ but wish she had not voted for the Omnibus bill.

Matthew Sablan said...

I don't think it is a difficult *legal* question. Of course Trump can fire Mueller. If Trump couldn't, then where is Mueller getting his executive authority?

Whether Trump should or not, well, there was a long, long time I said he shouldn't. I still think there's good reasons he shouldn't. But I'm not going to blame Trump if he pulls the trigger when Mueller is constantly managing his investigation poorly. How many leaks about the documents the taint team is looking through have we received? How does that not defeat the whole damn purpose of a taint team to protect attorney-client privilege?

Inga said...

“ Hi, Inga.”

Hi Michael, how’s that wonderful FBI daughter? I bet she’s still protective of the FBI and doesn’t buy into conspiracy theories unlike her father.

Tommy Duncan said...

rcocean said:

"Its crap like this that will cause the R's to lose in November. They don't have time, or can't get the votes, to do anything their base wants. But they have plenty of time to get together with Chuck Schumer to hamstring Trump."

I think the GOPe wants to lose in November. They don't want to lead and they hate Trump's populist agenda that offends their status quo loving masters.

Matthew Sablan said...

"Trump just pardoned Scooter Libby.

Bush must feel like a sad sack at this point."

-- I was with Bush on not doing that; seeing as the prosecution was clearly political, as we know now, I can't blame Trump for deciding to pardon Libby. It really is Mueller and companies fault for being so blatantly partisan in their investigations that even *I'm* starting to think this was OK.

I don't; I just get the reasoning in doing it. But, I'm open to persuasion the longer obvious criminals like Abedin walk while process crimes get rigorously enforced against others.

Ann Althouse said...

The Tenure in Office Act problem was solved in later statutes that limited the limit on the President. That's what Morrison v. Olson is about. You allow for firing but you have it done only for good cause and if someone other than the President is only able to do it that person needs to be fireable for any reason by the President.

Bushman of the Kohlrabi said...

We were told Russian-Trump collusion. Where is it?


Apparently it's up Stormy's cooch.

Michael Fitzgerald said...

Senator Graham needs to be removed from office.

Yancey Ward said...

If Trump cannot fire Mueller, then Mueller himself has no power to investigate and prosecute. The Constitution doesn't allow self-appointed federal prosecutors- they have to derive that power from the executive office, which is the president.

Michael K said...

Ann, you might want to restate that comment about the Tenure in Office Act. It is pretty confused sounding.

cubanbob said...

Trump should just get it over with. Fire Mueller, Sessions, Rosenstein, Wray and the rest of the criminal trash at the FBI and the DoJ. Then look for clean prosecutors to look into this whole sordid mess of an attempted coup and prosecute accordingly.
So the Left throws a fit. Who gives a shit. Trump won't get impeached and if by some chance the House does impeach him the Senate won't convict him. This is the second time the FBI has attempted to overthrow a president with Democrat convenience.

n.n said...

Obama did it. Trump can, too; but, he shouldn't. The press will not provide a cover-up, and, in fact, will progress with the baby hunt and trial.

Big Mike said...

Sorry, Althouse. I'm not buying Comey's book, through your portal or anywhere else. I'm not even going to buy it from the Barnes & Noble remainders table a few months from now.

Big Mike said...

The first sentence of Article II of the Constitution reads "The executive Power shall be vested in a President of the United States of America."

So where does Mueller work? If for the Judicial branch then that's one thing, but he doesn't. Does he work for the Legislative branch? Ah, no. So he works for the Executive branch, which means he ultimately works for Donald Trump.

Achilles said...

Big Mike said...

The first sentence of Article II of the Constitution reads "The executive Power shall be vested in a President of the United States of America."

So where does Mueller work? If for the Judicial branch then that's one thing, but he doesn't. Does he work for the Legislative branch? Ah, no. So he works for the Executive branch, which means he ultimately works for Donald Trump.



Dude. No. You are actually reading the constitution. That is not how it works. We have judges and bureaucrats who know what it really says.

You are just causing problems referring to the actual document.

Big Mike said...

@Achilles, I don’t cause problems — I made a very good living solving problems. Just pointing out reality for folks.

The Godfather said...

I don’t favor Trump firing Mueller, but if it turns out that the feds rifled Trump’s lawyer’s files for info on Stormy and Access Hollywood I’ll change my mind.

Big Mike said...

Godfather raises a good point. Is Trump Cohen's only client? Because any other client of Cohen who is on trial for anything at all should immediately file for dismissal with prejudice because there is no way to prove -- only "trust us" on the part of a thoroughly untrustworthy FBI -- that the prosecution's case was not tainted by information gathered during the raids on Cohen's home, office, and hotel room.

EDH said...

Congress is considering a bill that would purport to protect Mueller from firing...

As part of the legislative negotiation, couldn't Republicans insist that the same bill also restrict the scope of Mueller's investigation to Russian collusion?

Steven said...

Any controversy over Trump's current power to fire is entirely the effect of people deliberately trying to subvert the Constitution. It is fully-established Supreme Court case law that, as the executive power is vested in the President, persons wielding purely executive power can be fired by the President. Under precedent, a position must have "quasi-judical" or "quasi-legislative" powers to be insulated from that power. Prosecutors are purely executive. The idea that persons using delegated Presidential power to promulgate departmental regulations could prevent the president from exercising his Constitutionally-granted power is ludicrous.

Now, as far as legislation is concerned, that's a different issue, and where I disagree with Yoo and Prakash. The fact is that Congress has its own independent legislative power to investigate (following precedents from the British Parliament and established in case law). Even if we go so far as to consider the precedent on "quasi-legislative" appointees invalid, the President can't fire direct employees of Congress. At best, the President could choose to bar a Congressionally-invested special investigator from exercising executive-only powers like making ordinary criminal indictments.

Michael K said...

Now there is a story that Cohen arranged a payment to a Playboy "model" for another person, not Trump.

I don't think that is illegal and it has quickly leaked.

Bruce Hayden said...

I think that there is coming a reckoning with Mueller. Apparently some of the attorney/client information seized by his team is being leaked. They go before a federal judge, promise a taint team, etc, then almost immediately start leaking stuff that they are ethically and legally required to keep secret, presumably in order to force Cohen to roll on Trump. No one should be surprised, except for how brazen they are. Talk about believing that they are above the law - this almost takes the cake (Crooked Hillary’s illegal email server is hard to beat).