Once again: Trump Can’t–and Therefore (probably) Won’t–Remove Mueller

A tale of two “certainly”s:

Contrast:

Q   Does the President believe he has the power to fire Special Counsel Robert Mueller? Does he believe that’s within his power?

SARAH SANDERS: [He] certainly believes he has the power to do so.

[Press briefing earlier today.]

with:

The President has certainly no power to remove [an inferior officer appointed by a Department Head].

In re Hennen, 38 U.S. 230, 260 (1839).]

President Donald Trump claims to “believe” countless things that are pure fiction, or bunkum. (Cue Michael McDonald.)  Perhaps this is one more (although I’d be shocked if White House Counsel Don McGahn has actually advised Trump that he has the authority to remove Special Counsel Mueller).

No matter: Whatever Trump might “believe,” he does not have such power, as I have explained in previous posts. Indeed, it’s not even a (seriously) contested question, nor does it depend upon the continued existence of the DOJ Regulation, 28 CFR 600.7(d), which only solidifies the point by providing that a Special Counsel appointed from outside the Department of Justice (as Mueller was) “may be disciplined or removed from office only by the personal action of the Attorney General.” The (Acting) Attorney General, Rod Rosenstein, appointed Mueller pursuant to 28 U.S.C. 515, which assigns the Attorney General that power of appointment, and it has been settled since at least the first great congressional debate on removal, in 1789, that “as a constitutional principle the power of appointment carrie[s] with it the power of removal”–a “rule of constitutional and statutory construction” that was “then generally conceded, [and] has been recognized ever since.” Those quotations are from Chief Justice Taft’s opinion in Myers v. United States, 272 U.S. 52, 119 (1926)–perhaps the high-water mark of Supreme Court solicitude for the president’s authority on matters of removal. (Congress can supersede the “power-of-removal-follows-power-of-appointment” rule by enacting a law giving the removal authority to someone other than the appointing authority–as it did under the Independent Counsel statute at issue in Morrison v. Olson–but Congress hasn’t done so here.) 

That understanding did not end in 1926. The Supreme Court, per Justice Roberts, confirmed the “removal-follows-appointment” rule in 2010, in response to an argument that the president must have authority to remove such inferior officers. See PCAOB v. FEF, 561 U.S. 477, 493 (2010). And here’s the Department of Justice’s understanding of the question, from a brief filed in that case by Solicitor General Kagan on behalf of the United States:

[T]his Court has never held that the President must have direct removal authority over inferior officers. Pet. App. 17a-18a; see U.S. Const. Art. II, § 2, cl. 2. To the contrary, in discussing the removal of district court clerks in Ex parte Hennen, 38 U.S. (13 Pet.) 230 (1839), the Court reasoned that the power to remove an inferior officer who was not appointed by the President resided solely with the appointing authority: “the President has certainly no power to remove.” Id. at 260. And the Court has repeatedly recognized that the power to remove an inferior officer need not be held by the President when Congress has lawfully vested the appointment of that officer in another official. See, e.g., Morrison, 487 U.S. at 689 n.27; Myers, 272 U.S. at 161-164; Perkins, 116 U.S. at 485. Thus the Judge Advocate General, not the President, had the power of removal in Edmond, and the Attorney General, not the President, had the power of removal in Morrison.

UPDATE:  Likewise, in a brief that he filed with the Supreme Court just seven weeks ago, Solicitor General Francisco confirmed that “[t]he power to remove, being ‘incident to the power of appointment,’ rests with the appointing authority absent an express statement to the contrary” (quoting Hennen).

Think about it: If the president had the authority to remove a special counsel appointed by the attorney general, Richard Nixon could have–and would have–removed Archibald Cox himself, and thereby avoided the “massacre” of Saturday night, October 20, 1973, in which he had to (effectively) remove Attorney General Richardson and Deputy Attorney General Ruckelshaus in order to have Cox fired.(Indeed, although it’s possible there’s some aberrant example out there, I am unaware of any case in all of American history in which a president has attempted personally to remove an inferior officer appointed by someone other than the president himself.)  

For these reasons, I’d be very surprised if Trump purports to remove Mueller.  And if he does so, Mueller surely knows that Trump lacks such authority.  Therefore, he might well respond as Secretary of War Edwin Stanton did when President Andrew Johnson purported to remove him in violation of a statutory restriction–namely, refuse to leave his office and continue performing his functions.  (Contrary to what many of us teach our law students, the House did not impeach Johnson for removing Stanton–it impeached him for attempting — unsuccessfully — to remove Stanton.  Stanton left office only after the Senate failed by a single vote to convict Johnson.)

Accordingly, only Rod Rosenstein can remove Special Counsel Robert Mueller and, absent some unthinkable change of affairs, he won’t do so. In order to have Mueller removed, therefore, Trump would at a minimum need to first remove either Rosenstein or AG Sessions, and replace that officer with someone who is willing to remove Mueller even in the absence of any “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,” thereby reneging on the commitment that Rosenstein made to apply that regulatory standard when he appointed Mueller.

I am very doubtful Trump would be able to find anyone eligible to be AG or DAG who would be willing to do that dirty work–especially not after a removal of Sessions and/or Rosenstein and the political outrage and tumult that would inevitably follow in its wake. But make no mistake: that is what would be required. (And even then, the investigation would only revert to the authority of FBI Director Wray, who would be likely to take up Mueller’s mantle and continue his investigation vigorously. Which is another reason why we’re unlikely to see Trump try to effect Mueller’s removal.)

The greater risk is that Trump would remove Rosenstein or Sessions, and replace that officer with someone who would much more significantly clamp down on, and refuse to approve, investigative, prosecutorial, and/or reporting actions that Mueller (and, I suppose, those in charge of the Michael Cohen investigation) proposes to take.  (CNN reports tonight that Trump is now considering such a move.)  If Trump removes Rosenstein (which he can do because he appointed Rosenstein), Solicitor General Noel Francisco would exercise the AG’s authorities with respect to the Russia investigation.  I doubt (or at least I hope) that Francisco would not be party to such a strategy–that is to say, that he would not agree to impose constraints on Mueller that Rosenstein would not.  But that remains to be seen.

[Update: As Steve Vladeck has pointed out, Noel Francisco would succeed Rosenstein as the officer who performs the AG’s functions for purposes of the Russia investigation even if President Trump were to name an Acting Deputy Attorney General other than Francisco to replace Rosenstein as DAG, because it appears that an Acting Deputy Attorney General is not eligible to also serve as Acting Attorney General.  Of course, if and when the Senate confirmed someone to be Deputy AG, that officer would also oversee the Russia investigation.  It is possible, however, that the Senate would not confirm anyone who does not commit to giving Mueller a great deal of deference.]

 Image: Chip Somodevilla/Getty

 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).