Mr. Mueller was appointed not by Mr. Trump, but by Deputy Attorney General Rod Rosenstein after Attorney General Jeff Sessions recused himself from involvement in any investigation related to the 2016 presidential race. That means Mr. Trump couldn’t fire Mr. Mueller himself, but would have to order Mr. Rosenstein to do so.
Mr. Rosenstein has expressed support for Mr. Mueller, and his associates expect him to resign rather than carry out such an order. If that happens, Mr. Trump could turn to the next Justice Department official in line, acting Associate Attorney General Jesse Panuccio, and then to Solicitor General Noel Francisco.
It isn’t known if either would heed an order to fire Mr. Mueller. If they refuse, Mr. Trump would have to go down the hierarchy at the Justice Department until he found an official willing to do so. In such a situation, the president could face a number of DOJ resignations—and the political fallout that would entail.
Something like this happened on Oct. 20, 1973, when President Richard Nixon ordered Justice Department officials to fire Watergate special prosecutor Archibald Cox. Attorney General Elliot Richardson resigned, as did his deputy, William Ruckelshaus. Solicitor General Robert Bork finally did as Mr. Nixon asked. That episode became known as the Saturday Night Massacre.
.. Some legal experts have asked whether Mr. Trump might replace Mr. Sessions or Mr. Rosenstein with another official and order that person to fire Mr. Mueller.
Attorneys general and their deputies must be confirmed by the Senate. Someone who is temporarily “acting” in that position, without Senate confirmation, must come from an existing Justice Department job or a Senate-confirmed post elsewhere in the administration.
.. Mr. Trump could, in theory, install someone like Environmental Protection Agency administrator Scott Pruitt, a former Oklahoma attorney general, as acting attorney general. Then, he could order Mr. Pruitt to fire Mr. Mueller. The political blowback from such a move, however, would likely be considerable.
Would Justice Department officials appoint another special counsel to replace Mr. Mueller?
Harsh public reaction to the Saturday Night Massacre in 1973 forced Mr. Nixon to allow DOJ officials to appoint a replacement. Leon Jaworski took that job and steadily pursued the investigation until the president was forced to resign.
.. There is no reason to think the Trump administration would appoint a new special counsel if Mr. Mueller were dismissed.
.. Prominent lawmakers of both parties, including Senate Judiciary Chairman Chuck Grassley (R., Iowa), have expressed support for Mr. Mueller. Mr. Grassley’s committee holds confirmation hearings for Justice Department officials, so his views are especially important.
The Iowa senator has suggested he wouldn’t move to approve a replacement if Mr. Trump fires Mr. Sessions, and on Tuesday he told Fox Business that “it would be suicide for the president to want to talk about firing Mueller.”
.. In addition, even if Mr. Trump fires Mr. Mueller, he can’t fire the grand jury the special counsel is working with or the judge overseeing it. A judge could appoint another prosecutor to continue working with the grand jury.
In Trump vs. the F.B.I., Trump Will Lose
And yet Mr. Trump has signaled his desire to see it made public, unredacted. He clearly sees the memo as a weapon of political warfare — a way to rid himself of Mr. Rosenstein, who oversees both the F.B.I. and the special prosecutor investigating the White House, Robert Mueller. Mr. Rosenstein has made it clear that he will not fire Mr. Mueller at the president’s whim — which, to the president, means he needs to go.
.. Mr. Trump has been transparent in his antagonism. It is not a disinterested belief that the bureau is corrupt and in need of reform. He’d been in office for only four days when F.B.I. agents came to the White House to interview the national security adviser, Mike Flynn, who’d engaged in skulduggery with Russia. Mr. Flynn lied to the F.B.I.
.. Nixon’s willing executioner back in the October 1973 was the No. 3 man at Justice, the solicitor general Robert Bork. At the end of that fateful night, Nixon promised him the next seat on the Supreme Court
.. As the bloodhounds close in on the Oval Office, he may sharpen his blade and place the prosecutor’s head on a pike. If so, he’ll have to confront the Constitution. And he’ll lose again.
The GOP health-care bill shows the need for regular order.
Kennedy was the showy performer in that ugly spectacle, but Senator Biden, as chairman of the Judiciary Committee, was the stage director. Prior to Bork’s nomination, Biden had in fact said that he would support it: Bork was, after all, a distinguished legal scholar with a long history in public service. Bork had many challenges in front of him: For one thing, he was very sharp-elbowed in intellectual disputes, which had not won him very many friends.
.. The Senate majority leader at the time was Democrat Robert Byrd, a man who had rejoiced in the title of Exalted Cyclops of the Ku Klux Klan, and who held a grudge against Bork for his role in the Watergate scandal, during which Bork had fired special investigator Archibald Cox on the orders of President Richard Nixon.
.. The Senate majority leader at the time was Democrat Robert Byrd, a man who had rejoiced in the title of Exalted Cyclops of the Ku Klux Klan, and who held a grudge against Bork for his role in the Watergate scandal, during which Bork had fired special investigator Archibald Cox on the orders of President Richard Nixon.
.. The Democratic primary field was very full: There was Biden
.. Biden could not afford to stand by his earlier assessment of Bork and announced his opposition to the nomination shortly after it was made formal.
.. The 14 hours Senator Byrd had spent filibustering the Civil Rights Act of 1964 did not prevent him from becoming the Democratic leader in the Senate.
.. The Bork nomination, on the other hand, was an ordinary piece of government business elevated by Democrats to the status of national emergency in the service of narrow partisan interests. Biden was running for president, Kennedy was running for conscience of the Democratic party, and Byrd, frustrated by Republicans’ lack of cooperation on a number of his spending priorities, had promised: “They’re going to pay. I’m going to hit them where it hurts.”
.. The hysteria and vitriol directed at Bork were of a sort rarely seen since the early 19th century. But they quickly became commonplace.
.. But the rules of the game are not all there is to the game. What in another context might be called “sportsmanship” is in politics a question of prudence and even of patriotism, forgoing the pursuit of every petty partisan advantage made possible
.. The progress from Robert Bork to Merrick Garland is a fairly obvious story, but there is more to it than that:
- The increasing reliance upon legislative gimmicks such as omnibus spending bills and retrofitting legislation to fit with the budget reconciliation process,
- the substitution of executive orders and open-ended regulatory portfolios (“the secretary shall . . . ”),
- the prominence of emergency “special sessions” in the state legislatures,
- the absence of regular order in the legislative and appropriations process —
all are part of the same destructive tendency. Procedural maximalism in effect turns the legislative system against itself, substituting the exception for the rule and treating every ordinary item of business as a potential emergency item.
.. at the time, their numbers in the Senate were enough to secure their victory without a filibuster. But the course they set in those hearings — one of maximal confrontation, of reaching for whatever procedural cudgel is close at hand — led directly to our current state of governmental dysfunction.
.. at the time, their numbers in the Senate were enough to secure their victory without a filibuster. But the course they set in those hearings — one of maximal confrontation, of reaching for whatever procedural cudgel is close at hand — led directly to our current state of governmental dysfunction.
.. The recently proffered Republican health-care bill instantiates much of what is wrong with our politics:
The bill was constructed through an extraordinary process in which there were
- no hearings,
- no review from the Congressional Budget Office, and
- no final text of the legislation until shortly before the vote.
- The process is erratic and covert rather than regular and transparent.
- It was put together in a purposeful way to avoid substantive debate and meaningful public discourse,
making the most of the majority’s procedural advantages for purely political ends.
.. As Rod Dreher recently put it, Republicans will have to choose whether they love the rule of law more than they hate the Left.
.. Republican populists who argue that the GOP must play by the same rules in the name of “winning” have very little understanding of what already has been lost and of what we as a nation stand to lose.
The United States will not thrive, economically or otherwise, in a state of permanent emergency.
.. What’s truly remarkable about our current constant national state of emergency is that no one can say exactly what the emergency is. But we all seem to be very sure that something has to be done about it right now, that we must rouse ourselves to excitement about it, and that the ordinary rules of lawmaking and governance no longer apply.
There is not much political mileage to be had from arguing for regular order, transparency, and procedural predictability — but that’s part of what makes those things so valuable. Order in the little things is a necessary precondition of order in the big things. Orderly government cannot be built on a foundation of procedural chaos.
Acting Attorney General Orders Justice Dept. Not to Defend Refugee Ban
The decision by the acting attorney general is a remarkable rebuke by a government official to a sitting president that recalls the dramatic “Saturday Night Massacre” in 1973, when President Richard M. Nixon fired his attorney general and deputy attorney general for refusing to dismiss the special prosecutor in the Watergate case.
That case prompted a constitutional crisis that ended when Robert Bork, the solicitor general, acceded to Mr. Nixon’s order and fired Archibald Cox, the special prosecutor.
.. Aides to the president backtracked on Sunday, saying that lawful, permanent residents of the United States would not be barred by the order. But White House officials said the president had no intention of backing down from the order, which continues to shut the borders to refugees and others.