In an article that starts like this:
Acting AG Rod Rosenstein appointed Mueller pursuant to 28 C.F.R. §600.4-600.10. Under 28 C.F.R. §600.7(d), Mueller may only be "disciplined or removed from office only by the personal action of the Attorney General." Furthermore, the Attorney General cannot fire the Special Counsel at will. Rather any termination must be for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies" and the AG would have to inform Mueller "in writing of the specific reason for his or her removal." Because Sessions is recused, those AG decisions would be Rosenstein's.
The article does note that Rosenstein told a Senate panel "he would not permit Mr. Mueller to be dismissed without legitimate reason," but the rest of the article gives the clear impression that Trump has the ability to fire Mueller and that he can do it whenever he wants for whatever reason he wants.
What Trump can do is order Rosenstein to fire Mueller. If Rosenstein complies with the order and fires the Special Counsel without good cause without good cause, Mueller could immediately challenge the discharge in court and I personally don't think the administration would have much of a case given the language of the regulation. If, on the other hand, Rosenstein refused, Trump could follow in Nixon's footsteps and fire Rosenstein, and then order the next person in the Acting Attorney General chain of command to fire Mueller. If that person refuses, Trump could terminate that person and order the successor to fire Mueller, working his way down the chain until he finds someone willing to do what he wants.
As Jack Goldsmith noted in the Lawfare Blog, this raises another problem. Only a Senate-confirmed AG official can be acting AG. Because Trump fired all the U.S. Attorneys and has not gotten around to appointing people to most positions in the executive branch, the ranks of potential successors to Rosenstein are pretty thin. After Rosenstein, next up would be Associate Attorney General Rachel Brand. After Brand, the only remaining option is probably acting AAG for the National Security Division Dana Boente. Boente has not been confirmed in that position but because she was previously confirmed as a U.S. Attorney, she would theoretically be able to step in as Acting AG if Rosenstein and Brand refuse Trump's order to fire Mueller and are themselves fired.
If Boente refuses to go along as well, I am not sure what would happen. With no one to step in and fire Mueller, could Mueller be fired? Would the President just claim the authority to do it on his own notwithstanding the language in 28 C.F.R. §600.7(d) that makes it clear that Mueller cannot just be fired at will? Would Sessions un-recuse himself and do it?
Last month’s appointment of Robert S. Mueller III as a special counsel to investigate possible collusion between the Trump campaign and Russia enraged President Trump. Yet, at least initially, he holstered his Twitter finger and publicly said nothing.
But behind the scenes, the president soon began entertaining the idea of firing Mr. Mueller even as his staff tried to discourage him from something they believed would turn a bad situation into a catastrophe, according to several people with direct knowledge of Mr. Trump’s interactions. A longtime friend, Christopher Ruddy, surfaced the president’s thinking in a television interview Monday night, setting off a frenzied day of speculation that he would go through with it.
For now, the staff has prevailed. “While the president has every right to” fire Mr. Mueller, “he has no intention to do so,” the White House spokeswoman Sarah Huckabee Sanders told reporters late Tuesday....isn't it worth noting that the President does not have the legal authority to fire Mueller?
Acting AG Rod Rosenstein appointed Mueller pursuant to 28 C.F.R. §600.4-600.10. Under 28 C.F.R. §600.7(d), Mueller may only be "disciplined or removed from office only by the personal action of the Attorney General." Furthermore, the Attorney General cannot fire the Special Counsel at will. Rather any termination must be for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies" and the AG would have to inform Mueller "in writing of the specific reason for his or her removal." Because Sessions is recused, those AG decisions would be Rosenstein's.
The article does note that Rosenstein told a Senate panel "he would not permit Mr. Mueller to be dismissed without legitimate reason," but the rest of the article gives the clear impression that Trump has the ability to fire Mueller and that he can do it whenever he wants for whatever reason he wants.
What Trump can do is order Rosenstein to fire Mueller. If Rosenstein complies with the order and fires the Special Counsel without good cause without good cause, Mueller could immediately challenge the discharge in court and I personally don't think the administration would have much of a case given the language of the regulation. If, on the other hand, Rosenstein refused, Trump could follow in Nixon's footsteps and fire Rosenstein, and then order the next person in the Acting Attorney General chain of command to fire Mueller. If that person refuses, Trump could terminate that person and order the successor to fire Mueller, working his way down the chain until he finds someone willing to do what he wants.
As Jack Goldsmith noted in the Lawfare Blog, this raises another problem. Only a Senate-confirmed AG official can be acting AG. Because Trump fired all the U.S. Attorneys and has not gotten around to appointing people to most positions in the executive branch, the ranks of potential successors to Rosenstein are pretty thin. After Rosenstein, next up would be Associate Attorney General Rachel Brand. After Brand, the only remaining option is probably acting AAG for the National Security Division Dana Boente. Boente has not been confirmed in that position but because she was previously confirmed as a U.S. Attorney, she would theoretically be able to step in as Acting AG if Rosenstein and Brand refuse Trump's order to fire Mueller and are themselves fired.
If Boente refuses to go along as well, I am not sure what would happen. With no one to step in and fire Mueller, could Mueller be fired? Would the President just claim the authority to do it on his own notwithstanding the language in 28 C.F.R. §600.7(d) that makes it clear that Mueller cannot just be fired at will? Would Sessions un-recuse himself and do it?
