OPINION: Firing Mueller may be legal, but it would not be right

Some people close to the Trump administration have recently suggested that the president fire special counsel Robert Mueller. Many conservative thinkers and commentators have used their platforms to drive the message that the president — who has himself called the appointment of a special prosecutor “a witch-hunt” — should fire Mueller. Over the weekend, Newt Gingrich, tweeted, “Republicans are delusional if they think the special counsel is going to be fair … Time to rethink.” Others have made similar claims. Although such an act might be legal, it would be a terrible mistake.

To be sure, as the head of the executive branch, it is within the president’s constitutional authority to fire the special counsel. He retains the authority to instruct the attorney general (or in this case the Deputy Attorney General Rod Rosenstein, as Jeff Sessions has recused himself from all matters concerning the Russia investigation) to take such action.

{mosads}If Rosenstein refused to do so or resigned, Trump could order that the procedures setting out the appointment of a special counsel be rescinded, and fire Mueller himself under his executive authority. But just because he may have the authority to do something doesn’t mean that it is right to do it. Most Republicans — including many Trump allies — have said that firing Mueller now would suggest that the president had something to hide and would be a political disaster.

To date, I have seen no evidence of any violation of federal criminal statutes by Trump. The president did not obstruct justice when he fired FBI Director James Comey.

Trump also had the constitutional authority to order Comey to end the investigation of Flynn. He could have pardoned Flynn, as the first President Bush pardoned Caspar Weinberger, thus ending the Flynn investigation, as Bush ended the Iran-contra investigation. Likewise, it may well be within the president’s constitutional authority to fire Mueller, although in my view, this would constitute a conflict of interest and would be wrong.

It is clear that there is a problem with regard to the president’s authority to fire people who are investigating him. While a president cannot, as a matter of constitutional law, be guilty of obstructing justice by merely exercising his constitutional prerogative to stop an investigation or to fire the FBI director or a prosecutor, this is not necessarily a good thing as a matter of policy. No president should fire an official who is investigating him or his staff.

But this issue should be addressed not through the criminal law — which many of Trump’s critics have tried to apply despite the lack of a legal basis to do so — but rather by changing the law to avoid this problem in the future. A criminal law is retrospective in nature and designed to punish past conduct that is plainly criminal in nature. If Congress were to enact a new law limiting the power of the president in conflict of interest situations, such a law would be prospective.

It won’t be easy for Congress to enact legislation that deals with this specific problem without diminishing the president’s constitutional power over the executive branch of government. Congress did this when it enacted the independent counsel law, which the Supreme Court upheld. That law was allowed to lapse and there are currently no legislative restrictions on the president’s power in this area. Those who argue that the obstruction of justice statute constitutes a limitation on the president’s power are advocating a course of action that endangers everyone’s civil liberties.

Stretching an already broad statute in an effort to do something it was never intended to do creates a terrible precedent. There are better ways to achieve the desired result — namely, the enactment of a very specific statute tailored to the current problem.

This won’t be easy because the Constitution gives the president — as head of a unitary executive — the authority to fire the director of the FBI or a prosecutor for any reason or no reason at all (Comey himself acknowledged this). But Congress can try to draft calibrated and nuanced legislation that would protect the American people from a president using his power to fire someone who may point the finger at the president or his staff for wrongdoing. Such legislation might well pass constitutional muster with the Supreme Court.

In this hyper-partisan atmosphere, both sides are too quick to call for criminal prosecution of their political enemies for political sins that do not contain the required elements for criminal conduct.

I have repeatedly argued that a distinction must be made between disapproving of something the president does, and stretching already broad and vague criminal statutes to cover targeted individuals. It is as wrong to do that to Donald Trump, as it was to do it to Hillary Clinton. The criminal law must be reserved for willful violations of clearly defined crimes.

Preet Bharara, for whom I have great respect, tweeted an article with the accompanying comment:

Trump shld just replace Mueller with his own lawyer Marc Kasowtiz. @AlanDersh will surely say why not? https://t.co/1fz8AruEC2 via @politico

— Preet Bharara (@PreetBharara) June 13, 2017

He is wrong. I would condemn such a move, but I would not immediately jump to supporting a criminal prosecution. A former U.S. attorney ought to understand the difference between, on the one hand, prosecuting someone by expanding already overbroad criminal statutes, and on the other hand, disapproving of a president’s actions and trying to change it prospectively.

I write this article not to defend the president. I would write it regardless of who was president. I have also criticized Republican efforts to turn Hillary Clinton into a criminal for her misuse of a private email server. As a civil libertarian, I believe that the criminal law should only be used when the conduct at issue is clearly defined — such as bribery, destruction of evidence and lying to law enforcement officials.

It should not be used to fill gaps in the law, such as those that now exist with regard to presidential authority in ongoing investigations. Such gaps should be filled by prospective legislation. Congress should hold hearings on this important issue and try to enact legislation that prevents presidential abuses while protecting the civil liberties of all Americans.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of Taking the Stand: My Life in the Law and Electile Dysfunction: A Guide for the Unaroused Voter. Follow him on Twitter @AlanDersh or Facebook @AlanMDershowitz.

The views expressed by contributors are their own and are not the views of The Hill.