Trump’s tweet around 9 AM this morning must be taken very seriously and very literally:
The DOJ regulations say that only the Attorney General can fire a special counsel (special prosecutor). With Sessions recusing himself, Rosenstein is the Acting AG in this case. Because Trump wants to fire Mueller, he arguably needs Rosenstein to do the firing. (There is a complicated debate about whether Trump can fire Mueller himself). Rosenstein just testified that he believes a president cannot fire a special counsel himself, and that he has no cause to fire Mueller. In fact, Rosenstein knows he would become a target of an obstruction inquiry if he did fire Mueller at this stage. Just like Nixon’s “Saturday Night Massacre,” Trump wants to fire the AG (Rosenstein) who won’t fire thespecial prosecutor, and that will allow him to find a next-in-line who will.
Just a quick review of the Saturday Night Massacre: Nixon wanted to fire the special prosecutor Archibald Cox, but under the existing statutes and precedents, he thought he did not have the authority to do so himself. He ordered AG Richardson and Dep. AG Ruckleshaus to fire Cox, but they refused and resigned instead. That left Solicitor General Robert Bork (yes, that Robert Bork) next in line, and he fired Cox. His excuse was that, unlike Richardson and Ruckleshaus, he had not made a promise to Congress involving the special prosecutor.
In this case, Trump is looking for his Bork, and then we’re all Borked.
[note: Trump may be trying to force Rosenstein to recuse, for the same effect: shift authority to someone else who would serve as Acting AG to fire Mueller.]
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Author: Jed Shugerman
Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases.
He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.
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