Chatter about whether President Trump is going to fire Special Counsel Robert Mueller (or fire Deputy Attorney General Rosenstein and hire someone who will fire Mueller) ebbs and flows depending on the events of the week or even the day.
Legal scholars agree that the President does not have the authority to fire the Special Counsel and that, after Attorney General Jeff Sessions recused himself from the Russia probe, only Rosenstein has the authority to fire Mueller, for cause. That is an important distinction… Firing him to simply end the investigation is not allowed but Mueller can be fired for a valid reason – playing an unacceptable amount of Candy Crush during work hours, for instance.
The News Blender published a post yesterday about Session’s warning that he may resign if Trump fires Rosenstein. The Senate is expected to vote on a measure that would protect the Special Counsel this week. Trump has said he doesn’t need to fire either man since he has been assured that he is not a target in the investigation. However, no one can predict what the President will do at this point.
In light of that reality, there is an interesting article discussing Mueller’s options from Politico. He has a few tools at his disposal to insure the investigation is preserved and justice is done, regardless of his own fate.
If Mueller is removed and his investigation thwarted, the public might never learn what misconduct, if any, was uncovered by the special counsel’s probe.
Fortunately, while he retains his position, Mueller has a powerful tool at his disposal: The “sealed” or secret indictment. If Mueller indeed determines that he has a strong case against Trump, a secret indictment returned by a grand jury will help protect the integrity of his investigation even if he is fired, while also avoiding the risk of provoking Trump to try to further impede the probe.
Sealed indictments are routinely employed by federal prosecutors in sensitive investigations, particularly when a public indictment might have a negative effect on an ongoing investigation. To carry out this strategy, Mueller would a request that the already empaneled grand jury—the one considering matters related to Russian interference in the election—issue criminal charges against Trump himself. If the grand jury were to find probable cause for the charges to proceed, whatever they may be, a magistrate judge would then decide whether the indictment could remain secret. If the judge were to determine that it can, the charges would then remain hidden from public view until the criminal defendant is taken into custody or released on bail.
If Trump were to fire Mueller, an already filed sealed indictment would outlast Mueller’s tenure. A sealed indictment can only be dismissed by a judge, meaning Trump cannot rid himself of a legal headache simply by terminating the special counsel. A sealed indictment would also ensure that the statute of limitations for crimes Trump might be charged with will not expire. This leaves open the possibility of Trump being tried in the future.
There remains a question whether a sitting President can be indicted but Jones vs Clinton set a precedent that answers that question with a “yes”.
Ken Starr’s office of independent counsel agreed, concluding that a president could be indicted in office for a criminal offense, drawing on the basic principle that presidents are not above the law and that they can manage their affairs even if they are indicted.
As the investigation continues and we see Trump associates having their days in court, it is important that we, as citizens, understand the legal process involved and detach ourselves from emotion. No one except Special Counsel Mueller and his team of investigators know what evidence exists against the President, if any. But, with numerous indictments and plea deals, and the investigation expanding to include Michael Cohen, the President’s lawyer, the probe into Russia’s meddling in our election process is a force for Donald Trump to reckon with.
Why It Matters
The firing of Rosenstein or Mueller would prompt a Constitutional Crisis, forcing Congress to act. The President of the United States being under indictment, sealed or otherwise, would also prompt a Constitutional Crisis and would be an unprecedented scandal. The specter of impeachment hangs over the country, with every Presidential tweet.
Above all, we should want justice. The United States was founded to be a nation of laws, not men. No man, including the President, is above the law. American citizens should want evidence gathered and justice to be done. The Constitution was written for such a time as this and it is sturdy enough to carry us through this storm, regardless of how big or small this storm turns out to be, just as it has carried us through storms in the past.