Why Panic? If He’s Fired, Mueller Can Successfully Sue Acting Attorney General Whitaker

The media and some members of Congress seem to be in a panic about Attorney General Jeff Sessions being forced out of office. The New York Times used its very rare shouting tool: a full six-column headline on page 1.

Print and TV journalists have immediately jumped to conclusions and engaged in fear mongering about whether Special Counsel Mueller’s investigation will be tampered with or whether he will be “fired”. These concerns are reverberating in nearly all circles, without a sober assessment of the legal landscape.

The regulations of the Justice Department delineate exactly whether and how a Special Counsel could be discharged. These are not mere internal guidelines: they are published regulations that have the force of law, like EPA regulations or any other agency regulations. Courts routinely entertain lawsuits to enforce federal regulations and issue binding rulings, requiring full compliance.

Therefore, if Whitaker or his successor attempt to fire Mueller, he can file a lawsuit and seek a temporary restraining order. Fourteen days later, if a TRO is issued, an evidentiary hearing for a preliminary injunction would be legally required.  Witnesses would be dragged in by subpoena, including President Trump, if necessary.

Because President Nixon forced the firing of the special prosecutor investigating him, the media seems to assume that lawless-Trump can or will do the same — without consequence. The media coverage mentions their fears without mentioning how unlikely a successful firing of Mueller is, in the first instance. Indeed, reports have already surface that Whitaker has told Republican Senators that he has now reviewed the conduct of Mueller’s investigation to date and that he believes it is being conducted properly.

The media does not mention — or bring on legal experts, to describe how Mueller can sue in federal court to obtain a declaration that his firing is unlawful. One basis for firing him, spelled out in the regulations, is that a Special Counsel can be fired for a “dereliction of duty”. Do you really think Whitaker would send lawyers to court arguing that Mueller is not working hard on the investigation and not pursuing it vigorously enough? Another basis for a discharge of a Special Counsel is “misconduct”. There would need to be a detailed account, to a federal judge, as to what “misconduct” has occurred. Everyone who knows Mueller says that he is a by-the-book guy: misconduct is highly unlikely and would need to proven in a court of law.

Another reason for firing a Special Counsel is “incapacity”; i.e., that he is so ill, physically or mentally, that he cannot perform the duties assigned to him. This is obviously not the case here. A “conflict of interest” is also grounds, but Mueller has already been evaluated by DOJ for potential conflicts and cleared to proceed. That opinion is almost certainly in writing and Whitaker cannot just fabricate new alleged conflicts that could pass muster with a federal judge.

And finally, a Special Counsel can be fired for “good cause” (including a violation of DOJ policies). The phrase “good cause” has meaning in the law: there must be a darn good reason demonstrating why a person is not fit to serve and/or has engaged in some sort of improper behavior. And once again, if the firing is a ginned up phony attempt to obstruct justice, it will not be sustained by a federal judge.

Remember that Nixon’s fate was sealed by the Saturday Night Massacre event when Special Prosecutor Archibald Cox was fired. Another Special Prosecutor was then appointed, and Nixon was forced out of office by a Grand Jury report to Congress, all engineered by Leon Jaworski, Cox’s replacement.

It seems as though everyone is so dejected by Trump’s lawless talk that they have become jaded. There is a pervasive feeling that there is no accountability. But the law enforcement community and the courts, in my view, will not allow one person to tear down our legal institutions and our 229 year history of respect for the law. This is what distinguishes our great nation from many others around the world.

If evidence of illegal conduct committed by Trump exists, it is my view that he will be held accountable, one way or another (indictment, or impeachment and removal from office).