14 June 2017
TRENDINGIf President Trump took the drastic step of trying to remove special counsel Robert S. Mueller III, would congressional Republicans step up and act to constrain him?
In an interview with me today, Rep. Adam Schiff — the ranking Democrat on the House Intelligence Committee — made the stark argument that there is no guarantee that this would happen, though he said he expected that they probably would. Reports today say Trump may be mulling this move.
"My expectation would be that this would be the last straw for Republicans — that they would finally have to stand up to the president," Schiff told me. "Of course, that expectation has proved illusory in the past. So there's no guarantee."Schiff pointed out that there were broad expectations that Trump would not fire former FBI director James B. Comey, the last law enforcement official leading a probe into possible Trump campaign collusion with Russian efforts to sabotage our election. Mueller has since taken over this probe, and he may also be investigating whether the interactions between Trump and Comey — described in testimony by the former FBI director — constitute obstruction of justice.
"Before Comey was fired, and I was asked, 'Do I think the president could possibly fire Comey?,' I said, 'For a normal president, the answer would be absolutely not,' " continued Schiff, who has emerged as a prominent Democratic point man on the ongoing congressional probes into Trump and Russia. "But with this president, who can say?" Republicans, Schiff added, "have shown a willingness to make excuses for the most destructive behavior of a president in office that I can remember."
Trump appears to be mulling this step. A confidant of Trump says he is considering it. The confidant, Newsmax Media chief executive Christopher Ruddy, told CNN this morning that he had not personally discussed this with the president but added that "it's a consideration the president has had." The New York Times reports that the idea took the White House "by surprise," but adds that press secretary Sean Spicer is not flatly denying it, noting that Spicer said that "only the president or his attorneys are authorized to comment."
Trump's lead attorney, Marc Kasowitz, also declined to comment. Another one of Trump's lawyers refused to answer when pressed on this point on ABC's "This Week." All this, along with everything Trump has already done to confirm his autocratic and authoritarian tendencies, suggests that the move needs to be treated as being within the realm of the plausible.
Could Trump pull it off? Jack Goldsmith, a senior legal adviser in the George W. Bush administration, has a new piece grappling with this question. The short version: Justice Department regulations permit the attorney general — in this case, it would be deputy Rod J. Rosenstein, because Jeff Sessions has recused himself — to remove the special counsel if he engages in misconduct or "for other good cause." But Trump could try to invent a "good cause" and order Rosenstein to fire Mueller.
If this happened, Goldsmith writes, presumably Rosenstein would resign, and at that point, complicated succession questions at the Justice Department would take over. But the bottom line is that Trump might be able to get Mueller out — perhaps via a presidential directive that overrides the regulatory need for "cause" and simply fires Mueller. At that point, it's not clear what would happen.
In a follow-up interview with me, Goldsmith said Congress could act legislatively to reinstate Mueller. But if it really came to this, Trump would probably veto any such effort, and Goldsmith added: "Action by statute against the president on the Mueller issue would likely require veto-proof super-majorities."
That would mean that at least a dozen GOP senators, and more than 40 GOP representatives, would have to join such an effort. In our interview, Schiff said he thought this would likely happen.
"We would probably take up a bill that would establish an independent counsel for the purposes of this investigation, and give the appointment power to legislative leaders who would appoint Bob Mueller," Schiff said. "That's what I hope and expect would happen. But you have to admit the possibility that Republicans, against all reason, would continue to serve as enablers of this president."
Such a bill would probably "pass by a veto-proof margin," Schiff told me. "And then it's very unlikely you would get people wanting to change their votes. I certainly wouldn't want to have that vote on my record. It's worth the White House understanding that if they take this extremely destructive step, they'll have to fight a legislative effort to establish an independent counsel with Bob Mueller as the designee."
A breaking point? Maybe.
It is, of course, very possible that the removal of Mueller would constitute a breaking point for congressional Republicans. If anything would, you'd think this would be it. But keep in mind that many Republicans — such as House Speaker Paul D. Ryan (Wis.) — are now committed to the public line that Trump's excesses are merely rooted in his inexperience and background — in his lack of knowledge of protocol, his habit of wielding maximal control over an organization as a business leader, or his affection for the theatrics of disruption. Trump, goes this line, merely has to learn the rules.
If Republicans were to state right now that firing Mueller is a red line for them, it would require an acknowledgment that this whole "Trump as naif" narrative is just nonsense — that the problem is not that Trump needs to learn the rules, but rather that he does not believe the rules should apply to him. This acknowledgement would implicitly implicate Republicans, because the spin itself requires pretending that they have not spent the past five months looking the other way while Trump amply demonstrated his contempt for the rules. It requires pretending that they have not actively enabled the serial trampling on rules, norms and constraints — the abuses of power and contempt for the rule of law and our institutional processes — that have characterized Trump's presidency since the beginning.
Meanwhile, some prominent conservative media voices have now taken up the cause of attacking Mueller and saying that he must go, which, if it escalates, might increase pressure on Republicans to stand by Trump if he removes him. Given all this, is there any reason to be all that sanguine that Republicans would act in the necessary numbers necessary to constrain him if he does go there?
Greg Sargent wrote this in The Washington Post on June 13, 2017.
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June 14, 201