Trump Can Fire Special Prosecutor If He Wants

Newly appointed special prosecutor Robert Mueller has power to subpoena records and seek criminal indictments

The first thing you need to know about newly appointed special prosecutor Robert S. Mueller III is that he is not safe from being fired by President Donald Trump.

Trump can order Deputy Attorney General Rod Rosenstein to fire Mueller, and if Rosenstein refuses, Trump can fire him and others down the line in the Attorney General’s office until the president finds a prosecutor willing to carry out his firing order. Trump doesn’t have to give a reason.

That’s exactly what happened when special prosecutor Archibald Cox was appointed to investigate President Richard Nixon: the president successfully ordered the Justice Department to fire Cox.

But if Mueller is not fired — and there’s no immediate indication that he will be —  he has the same broad powers that a regular federal prosecutor does, plus additional independence.

He is officially called “special counsel,” but he has the power to subpoena records and witnesses, convene a grand jury, seek a criminal indictment, go to trial, and seek a conviction and prison terms for individuals charged with federal crimes.

He will step in as the lead federal prosecutor on the ongoing federal investigation into allegations Russian interference with the 2016 presidential election including possible collusion by the Trump campaign. He will lead with FBI agents and career prosecutors already working on the case.

There is one problem with the special prosecutor. If no indictment is brought, all the evidence will stay secret.

To read Rosenstein’s official press statement about his appointment of Mueller, it appears that Mueller will not necessarily be investigating the Trump campaign.

Rosenstein’s statement said he appointed Mueller “to serve as Special Counsel to oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016 presidential election and related matters.” No mention of Trump.

But Rosenstein’s official appointment order makes clear that Meuller will be taking over the investigation of the Trump campaign.

Mueller is “authorized” to take over the ongoing investigation of “any links an or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” Rosenstein’s signed order said.

Mueller also will take over the investigation of “any matters that arose or may arise directly from the investigation,” an apparent reference to Trump’s reputed request that FBI director James Comey halt the investigation of Trump ally and former national security advisor Michael T.  Flynn and Trump’s subsequent firing of Comey over the Russian probe.

Harvard Law Professor Laurence Tribe and others have said that Trump’s conversations with Comey and his firing of the FBI director were improper attempts to interfere with an ongoing criminal investigation and constitute a crime known as “obstruction of justice.”

“To say that this does not in itself rise to the level of ‘obstruction of justice’ is to empty that concept of all meaning,” Tribe wrote in a May 13 op-ed piece in the Washington Post.

The last time a special prosecutor was appointed in 2003, when Comey was deputy attorney general in the Justice Department, and appointed special counsel Patrick Fitzgerald to investigate leaks from the President George W. Bush administration revealing the identity of covert CIA agent Valerie Plame.

Fitzgerald brought an indictment against Lewis “Scooter” Libby, chief of staff for Vice President Dick Cheney, for alleged perjury and obstruction of justice. Libby was convicted of four perjury charges but was pardoned by President Bush.

A special prosecutor/special counsel is not the same thing as an independent prosecutor.

In the wake of Nixon’s firing of special prosecutor Cox, Congress passed a law creating an independent counsel who was appointed by a panel of judges in the U.S. Court of Appeals for the D.C. Circuit to guard against presidential interference.

A handful of independent counsels have been appointed since then, including Kenneth Starr, who was appointed as an independent prosecutor to investigate President Bill Clinton in connection with an alleged banking scandal, but the investigation morphed into an investigation of Clinton’s affair with White House intern Monica Lewinsky, and resulted in a congressional impeachment trial but no impeachment conviction of Clinton.

Congress allowed the law to expire in 1999 after both political parties concluded that the independent counsel’s powers were too broad. Federal regulations were enacted after 1999 to allow the attorney general to appoint a “special counsel.”

Before Mueller was appointed, members of Congress had called for an independent commission, but that body could not bring any criminal charges.

No American president has ever been removed from office for obstruction of justice or other charges, although President Andrew Johnson was impeached by Congress and avoided being convicted by the Senate by a margin of one vote, and Nixon resigned after articles of impeachment were drawn up against him, Professor Tribe said in his opinion piece.