Recent events have intensified speculation that President Donald Trump will try to remove Special Counsel Robert Mueller, but many say Trump can do so only indirectly because a regulation provides that only Deputy Attorney General Rob Rosenstein (or some replacement) has that power.
But a mere Department of Justice [DoJ] regulation can no more override a president’s constitutional power to remove subordinates than a Department of Defense [DoD] regulation providing that only the Secretary of Defense can order a nuclear strike would prevent a president from taking such an action over the Secretary’s objections, suggests public interest law professor John Banzhaf who has been involved in two special prosecutor legal actions.
For example, former acting Solicitor General Neal Katyal, who was involved in drafting the regulations under which Mueller was appointed, explained that there are only two paths by which Mueller could be fired. First, President Trump "would have to direct Rosenstein to fire Mueller" for some form of misconduct that rises to the level of "good cause." Second, "Trump could order the special-counsel regulations repealed and then fire Mueller himself."
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But largely overlooked is the scenario under which Trump himself bypasses Rosenstein and the regulation, and simply directly fires Mueller by himself, says Banzhaf.
This alternative has been largely ignored because the Justice Department regulations, under which Mueller was appointed, provide [at 28 CFR 600.7(d)] that: "the Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General."
But, suggests Banzhaf, it is not clear that a mere regulation - one adopted without any action by Congress, and not even as the result of a typical notice and comment rulemaking proceeding - can override the inherent power of any president to remove those officers who serve under him in the executive branch.
Would a DoD regulation saying that "a nuclear strike may be ordered only by the personal action of the Secretary of Defense" really stop a president from ordering such action even if his Defense Secretary does not agree?
To ask that question is to answer it, suggests Banzhaf, arguing that a mere regulation, adopted by an agency without any action by Congress, and without even following the normal notice and comment process, can hardly by itself curtail the inherent powers of a president under the Constitution.
Similarly, if the Justice Department were to now adopt a regulation which said that "the Deputy Attorney General may be disciplined or removed from office only by the personal action of the Attorney General," it's hard to see how that could constitutionally bind the president's hands in firing such a subordinate. But this language is exactly the same as that contained in the existing DoJ regulation, except that words "Special Counsel" have been replaced by words "Deputy Attorney General/
Without the authority to fire his own subordinates when necessary, it has been argued, a president cannot "take Care that the Laws be faithfully executed" as Article II, Section 3 of the Constitution requires.
Many recent Supreme Court and appellate cases involving limitations on the president's power to remove officers have stressed the importance of this inherent power, and have generally upheld any limitations on it only in unusual circumstances.
For example, it has long been true that Congress cannot constitutionally limit the power of the President to discharge officers within the executive branch, with or without cause. The holding in the famous Supreme Court Myers v. U.S. case is that Constitution endows the President with an illimitable power to remove all officers who serve under him.
Moreover, while Congress can limit the authority of the president to remove heads of independent agencies outside of the Executive Branch, and require that he take such action only if there is sufficient cause, even this power has been largely untested.
In any event, in such circumstances, the courts are only recognizing the power of Congress, an independent and co-equal branch of government, to itself impose such limitations, and to do so regarding only so-called "independent agencies," not those like the office of special counsel which lie completely within the executive branch.
At issue here is a mere regulation, adopted unilaterally by an agency within the executive branch by officers who serve at the pleasure of the president, and never agreed to by any Congress or any prior president. Although normally legally binding on the agency and its officers until revoked by some lawful process, it seems unlikely that it would bind the president himself.
For example, the first special prosecutor, Archibald Cox, had been appointed under regulations which provided that "[t]he Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part"
Despite this very strong language, apparently neither the attorney general nor the deputy attorney at the time believed that the regulation prevented the president from firing Cox without cause, and Robert Bork, who eventually did remove Cox from office, said "I recognized that the president had a clear legal authority to fire Cox."
Indeed, Bork reportedly said "I think that night all of us assumed that, as far as I know, Attorney General Richardson and Deputy Attorney General Ruckelshaus assumed that the regulation did not stand in the way of a presidential order . . . none of us thought that that regulation was a bar to a presidential order" and that everyone in the office, Richardson included, "assumed the President could [remove Cox] over an Attorney General's regulation"
Subsequently, after Congress passed a special statute to authorize such appointments, the Supreme Court in Morrison v. Olsen upheld the power of Congress to limit the authority of the president to remove an "independent counsel," permitting that decision to be left in the hands of the attorney general.
But once again that limitation was upheld only because it was in a statute which had been passed by Congress, and then signed by the president then in office. In stark contrast. Mueller's appointment does not enjoy the protection of any statute, so the fact that a mere regulation might seem to limit the president's removal power probably does not in fact or in law actually do so.
For example, law professor Josh Blackman has written that "Watergate teaches a third lesson: If someone in the chain of command follows Trump's order to fire Mueller without a showing of "good cause," Section 600.7(d) will serve as no constitutional barrier. . . . President Trump has no duty to honor Rosenstein's unilateral decision. If he decides that Mueller, an inferior officer, must be removed without a showing of 'good cause,' he need only so order.
As with many other unusual actions Trump has taken, the applicable law is far from clear - in large part because the actions are unusual. But "the law" is not just what law professors and other experts opine. As Oliver Wendell Holmes taught us: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."
So, if Trump were to exercise what he claims to be his inherent constitutional power to fire any subordinate officer in the executive branch, and simply have the U.S. Marshall Service physically remove Mueller and his colleagues for their offices, any district court would likely to be reluctant to issue an order directly countermanding that decision, and returning Mueller and his team to office. At the very least, such an action would create a constitutional crisis, with good legal arguments on both sides, says Banzhaf.
Moreover, he notes, Judge Gerhard Gesell's ruling that "[t]he firing of Archibald Cox in the absence of a finding of extraordinary impropriety was in clear violation of an existing Justice Department regulation having the force of law and was therefore illegal" is very weak precedent to the contrary.
That because, suggests Banzhaf, the lower court judge did not decide issues related to separation of powers or the President's authority under Article II. Moreover, that single adverse ruling was later vacated by the D.C. Circuit.