What if Trump fires Mueller?

First, if he tries on his own unilaterally, Mueller could go to court to challenge Trump’s authority under 28 CFR 600 (don’t worry about that now). But Trump may have the power to unilaterally rescind that regulation. If Trump doesn’t rescind that regulation, an acting AG (Rosenstein, or if he recuses or is fired, the next in line) could appoint someone else, which is why I think Trump will have multiple motivations to rescind it.
MOST LIKELY: A Congressional Committee could hire Mueller to be their lead investigator, and they could hire his team. The Senate Intelligence Committee seems to be the most likely, given Sen. Burr and Sen. Collins being somewhat cooperative so far. I could imagine the Judiciary Committee also following. Sen. Grassley has been a Trump booster in general, but he has signaled that firing Mueller would be a bridge too far.
Congress could pass a statute by 2/3 of each House over Trump’s veto to create a new Independent Counsel. An acting AG would need to appoint, in all likelihood. But Congress could decide this new legal office could be appointed by a different cabinet official if the DOJ has descended into chaos due to resignations or firings.
Federalism: New York’s AG Schneiderman could hire Mueller. This could be part of the quo warranto power that every state AG has over corporations in their state (see my old posts on the background of this power in the Trump emoluments context). Trump Org. is incorporated in New York and Delaware. I presume that other state AGs could investigate financial crimes connected to their states.
Emoluments suits: Each of these civil suits would have discovery over the Trump Organization, and Mueller could be hired by Maryland’s AG or D.C.’s AG or by the Congressional Democrats for full discovery and depositions. The problem is that this power will take more time to move through the courts, to respond to Trump’s motions to dismiss.

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. View all posts by Jed Shugerman