John Dean: As the Russia Investigation Closes In on the Trump Family, Can Mueller Be Fired?

This article first appeared on the Verdict site.

On Wednesday, July 19, 2017, President Donald Trump gave an extraordinary interview to the New York Times.

The biggest headline was Trump's displeasure with his attorney general, Jeff Sessions, who he believes should not have recused himself from the federal government's ongoing investigation of the influence of Russia on the 2016 presidential election, and whether there was any collusion between the Trump campaign and Russian hackers trying to manipulate the results to favor Trump.

(Also striking, Trump's lack of preparation resulted in him making too many serious errors, mistakes that would embarrass most presidents but not one who feels no shame.)

Ivanka Trump and her husband Jared Kushnerat Rome's Fiumicino Airport on May 23, 2017. FILIPPO MONTEFORTE/AFP/Getty

Sessions, in announcing his withdrawal, said he was acting on the advice of the Justice Department's ethics lawyers. More specifically, the attorney general testified in June 2017, "I recused myself not because of any asserted wrongdoing on my part during the campaign," he explained. "But because a Department of Justice regulation, 28 CFR 45.2, required it."

He added, "That regulation states, in effect, that department employees should not participate in investigations of a campaign if they have served as a campaign advisor." In short, it is a long-standing rule that guides the Justice Department.

Surely Trump knows this, for it was widely reported, so he was telling the New York Times he was angry with Sessions for following the Justice Depart rule because it resulted in the deputy attorney general, Rod Rosenstein, appointing special counsel Robert Mueller, after the president fired FBI director James Comey.

In Trump's thinking, apparently, if Sessions had not recused himself there would be no special counsel Mueller investigating possible ties between the Trump campaign and Russia. Trump—a man who is conspicuously manipulative and anything but subtle—in his interview thus reveals that he is deeply concerned about the Mueller investigation.

For anyone who has followed the Russian connection to the Trump campaign and presidency— here is an excellent running list of connections —the New York Times interview was something of an indication that things are happening that make Trump unhappy, and Trump is beginning to feel the investigation closing in on him.

Given the way he has handled these matters in the past, he now appears worried. So in the interview he went after Mueller, claiming the special counsel had conflicts of interest so he should not be investigating Trump. Here is how the Times summarized the attack:

Mr. Trump said Mr. Mueller was running an office rife with conflicts of interest and warned investigators against delving into matters too far afield from Russia.

Mr. Trump never said he would order the Justice Department to fire Mr. Mueller, nor would he outline circumstances under which he might do so. But he left open the possibility as he expressed deep grievance over an investigation that has taken a political toll in the six months since he took office.

Asked if Mr. Mueller's investigation would cross a red line if it expanded to look at his family's finances beyond any relationship to Russia, Mr. Trump said, "I would say yes." He would not say what he would do about it. "I think that's a violation. Look, this is about Russia."

Going after Sessions and then Mueller is extraordinary. But we all now know this is standard operating procedure for Donald Trump, who is always on offense as his primary defensive tactic. For that reason, it was no surprise when the Washington Post published a follow up story on July 20, 2017, clearly based on well-placed sources within the Trump camp, as confirming the attacks by Trump.

The Post headline was not subtle: "Trump team seeks to control, block Mueller's Russia investigation." Nor the opening paragraph: "Some of President Trump's lawyers are exploring ways to limit or undercut special counsel Robert S. Mueller III's Russia investigation, building a case against what they allege are his conflicts of interest and discussing the president's authority to grant pardons, according to people familiar with the effort."

Tucked into the Post story was a confirmation that Trump's attack on Attorney General Sessions from the day before had been designed to force him to volunteer his resignation. The Post reported, "Several senior [Trump] aides were described as 'stunned' when Sessions announced Thursday morning he would stay on at the Justice Department."

And the story reported that the recently hired spokesperson for Trump's team of outside lawyers, Mark Corallo, had resigned. And the more recently hired legal-crisis manager, Ty Cobb, who would not be on the job formally until the end of July, had nonetheless tried to organize a meeting to coordinate what was being said, while Trump was running around unbeknownst to them all attacking his attorney general in the New York Times.

Clearly, chaos and turmoil are the hallmarks of Trump's legal operation.

I have paused to note these stories because I believe they are markers, so allow me to offer a little prognostication. These stories reveal a worried president for not only does he know that he is in trouble but he has put his family in trouble as well: Donald Jr., Ivanka, and Jared Kushner.

He could care less about the staffers he has placed in jeopardy, they are only useful to him so long as they protect him. So here are a few Questions and Answers these stories provoked in my mind:

Question: Was the attack on Sessions undertaken to get him to resign, and if yes, why?

Answer: Given the reaction of his senior aides, who may have learned of the president's thinking after the fact, Trump clearly hoped to get Sessions to leave the Justice Department. Trump probably thinks he can find someone he can control, who will fire Mueller should he get close to information that will truly endanger the president or his family.

(Trump seems to think he has an FBI director in Christopher Wray whom he can control, and that is true, Wray did a wonderful job of snowing the Senate Judiciary Committee at his confirmation hearing. We will see on Wray.)

But if Sessions leaves the post of attorney general, Trump will never get a puppet through the confirmation proceedings. Nixon tried such a ploy, but the Senate Judiciary Committee put so many strings on Nixon's nominee, Elliot Richardson, that if he had fired Watergate Special Prosecutor Archibald Cox, it would have ended not only his public career but his private career as well.

If Sessions leaves there are enough Republicans in the Senate who are troubled by Trump to strengthen the position of special counsel Mueller, not weaken the post.

Question: Can Trump build a "conflict of interest" case against Mueller and his staff, which would provide a basis to fire him and them?

Answer: Very, very, doubtful. Unlike Trump and his team, Mueller and his team are experienced government officials, who have decades of public service and who know the rules as well as they do their children.

The reported conflicts Trump has gathered are weak, and most are not true conflicts, like the fact that some attorneys working for Mueller have made contributions to Hillary's campaign. That is not a conflict of interest rather a First Amendment right.

Others purportedly worked at law firms that might have been involved with litigation or clients that create a conflict for them to now investigate Trump, but you can be sure that was checked closely and completely before Mueller hired them.

Another conflict Trump has suggested to friends is that Mueller wanted the job of FBI director, and Trump did not offer it. But that is not a conflict of interest. The Post reports the Trump teams are digging into a claim that Mueller left a Trump Country Club after some disagreement about his membership, but Mueller has denied this claim.

Question: On what basis can the special counsel be removed? And can Trump really fire Mueller?

Answer: Unlike the special prosecutor created during Watergate, the special counsel was appointed pursuant to Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations, which addressed some of the earlier problems.

For example, he can only be removed by personal action of the Attorney General (and since Sessions is recused, Deputy Attorney General Rosenstein). 28 CFR 600.7 states:

The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

Unlike the summary firing of Archibald Cox by Nixon, to remove Mueller or any of his staff would require an investigation and proceeding by the Department of Justice, and would be subject to appeal in federal court. Indeed, these regulations were written to make it difficult to remove a special counsel, and I seriously doubt Trump can succeed.

These regulations would have to be nullified by Trump, but I have little doubt Mueller could and would litigate that action, and prevail in federal court because a president cannot remove due process to accomplish his goal of removing the special counsel. Nor with a special counsel as experienced and careful as Mueller, can he exercise any control over the investigation.

I have not mentioned the potential of any of Trump action against the special counsel provoking an impeachment proceeding by Congress because I do not believe Republicans will, under any circumstances, including Trump shooting someone on 5th Avenue, undertake to impeach and remove Trump.

They are spineless, and have placed party before country. But institutions like the Justice Department and the federal judiciary have not yet been corrupted by the Republicans, and they remain the check on this out-of-bounds president.

John W. Dean is a former counsel to President Nixon.