Harry Litman, a former US Attorney and Assistant Attorney General, writes in the LA Times that Donald Trump is almost certain to fire Special Counsel Robert Mueller at some point and the process will be very much like what Nixon did to fire Archibald Cox.
The odds also seem great that the erratic, power-consumed and thin-skinned Trump, who every week launches a new Twitter attack on a real or imagined enemy, will be unable to stay his hand month after month as the Mueller investigation unfolds. Like the fabled scorpion who stings the frog even though it dooms him, Trump, being Trump, won’t be able to endure domination by Mueller over the long term. Of course, Trump likely fails to appreciate that it is not Mueller personally, but the law, that is asserting its dominance.
Let’s say Trump snaps.
To fire Mueller, Trump would need to order Deputy Atty. Gen. Rod Rosenstein to remove him. But Rosenstein, a career prosecutor with a strong dedication to the values of the Department of Justice, would likely resign his office rather than comply with the order, as would the department’s third-ranking official, Rachel Brand.
Eventually Trump, moving down the hierarchy, would find someone willing to fire Mueller (as Nixon found Robert Bork, the then-solicitor general, to fire Archibald Cox).
From there, Mueller could launch a legal challenge to the ouster (potentially with the support of the Department of Justice). It’s by no means clear that Mueller, an ex-Marine of legendary rectitude, would choose to sue. Assuming he did, though, he would need to overcome a series of constitutional arguments by the president’s lawyers that any restrictions on the president’s ability to terminate him would impinge on presidential power under Article II.
In any event, any pushback from the courts would likely be procedural and incremental. Only Congress is positioned to pass broad judgment on Trump. But a congressional response — for example, a statute to create an independent counsel — would be tempered by political compromise, and would have to withstand a presidential veto. In particular, it’s hard to envision a scenario in which Congress successfully forced Trump to reinstate Mueller.
I think all of this is accurate. The option at that point would be impeachment, which I think would be a real possibility. But would the Senate convict on the impeachment? It would take a 2/3 vote to do it and I doubt that many Republicans would flip on him. 50 would be easy; 67 would be far more difficult. And if they fail to convict, Litman correctly notes, Trump “will find a cheap salesman’s way to declare victory, to the exasperation of his critics.”
So we’re left with impeachment without removal. At that point, would he even bother running for a second term? Certainly, there would be a primary challenger and Trump would be terribly weakened. That might well be the best case scenario, that Trump is so weakened that steps down or is beaten in a primary challenge in 2020, with the damage to the Republican party paving the way for the Democratic nominee to win the White House, and hopefully take control of the House as well.
A Democratic sweep at the state level would be crucial in 2020 in terms of reversing the last ten years of gerrymandered districts that has given the GOP control of most state legislatures and the House. In this best-case scenario, we could be at a major crossroads and be in a position to reverse what has happened since the 2010 Tea Party revolution, which has damaged the country enormously.
The other possibility, of course, is that Mueller does manage to make serious criminal charges stick against Trump himself, as opposed to those beneath him. He can’t be prosecuted until he leaves office, but if Mueller really does have him dead to rights, that provides an alternative means to the best case scenario.