Jeff Sessions is out — What does it mean for Mueller?

The fly in President Trump’s ointment is gone. The ink was barely dry on the midterm election ballots before the president took the first step in what may be a frontal assault on the Russia investigation. For months, the president complained that Jeff Sessions misled him, failed to protect him from special counsel Robert Mueller and was not up to the task of being his attorney general. Now, the president may take the ultimate obstructionist step of either causing Mueller to be fired or clipping Mueller’s wings in such a way as to sterilize the investigation.

President Trump’s replacement for Sessions is Matthew Whitaker, a former federal prosecutor from Iowa who worked as Sessions’s chief of staff. Importantly, Whitaker is on record, in August 2017, saying the Mueller investigation has gone too far, and more recently stated that he could assume Rod Rosenstein’s duties. Whitaker’s promotion may be the first step in another “Saturday Night Massacre,” which infamously involved the axing of President Nixon’s special prosecutor, Archibald Cox.

{mosads}As acting attorney general, Whitaker could wrest control of the Mueller investigation from Rosenstein and effectively shut it down. The special counsel regulations state that “the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued” (28 C.F.R. §600.7[b]). Under such authority, Whitaker could unilaterally slam the door shut on Mueller’s efforts.

Whitaker could go even further. The special counsel regulations permit him to remove Mueller for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies”  (28 C.F.R. §600.7[d]). The bounds of what constitutes “other good cause” may be susceptible to the president’s whims. And President Trump has asserted that Mueller has a conflict of interest based on a supposed golf club fee dispute at one of Trump’s properties.

If Whitaker took one of these courses, he would be required to inform the chairman and ranking minority member of the judiciary committees of each house of Congress (28 C.F.R. §600.9). Aside from that requirement, there may be little to constrain the president and Whitaker.

So, what happens now? Having worked for 13 years as a federal prosecutor in the Bush, Clinton and Obama administrations, I think it likely that Mueller has in place contingency plans should he be fired or his work curtailed in such a way as to make him ineffective. He likely has an interim final report and draft indictments in reserve, and also likely has plans for one of his staff to continue the work should he be removed.

Yet, even assuming that is the case, how does such information get to Congress or the American people? The special counsel regulations only permit Mueller to submit a report to the attorney general (28 C.F.R. §600.8[c]). The attorney general then has the option to release the report, or not. In other words, Whitaker could bury Mueller’s work within the Department of Justice.

Would that be the end? It is difficult to imagine a scenario in which Mueller’s work ultimately does not come to light. The special counsel’s office has been extremely tight-lipped throughout the investigation but the pressure to leak investigative materials would be great.

There may be another legal avenue; a little-known case from the Nixon era may take center stage. In Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973), several congressmen sued Nixon’s solicitor general, Robert Bork, who was acting attorney general at the time because of the original “Saturday Night Massacre,” seeking a ruling that Archibald Cox’s firing was illegal. The judge ruled against the Nixon administration, stating that the “firing of Archibald Cox in the absence of a finding of extraordinary impropriety was in clear violation of an existing Justice Department regulation having the force of law and was therefore illegal.”

Democratic senators and congressmen could line up to file a similar action, challenging any attack on Mueller.   

Another important question raised by an attack on Mueller is whether such action could qualify as obstruction of justice, which is defined as an effort to corruptly obstruct or impede the due and proper administration of the law. There is great legal debate on whether the president’s exercise of his constitutional authority ever can be considered obstruction of justice, but the president’s dismantling of the prosecutor tasked with investigating him may be the epitome of corruptly impeding a federal investigation. To find otherwise essentially raises Trump’s status to that of a king.

Not only may action against the special counsel be illegal, it may be unwise. The midterm elections empaneled at least 51 Republican senators who would judge the president’s conduct, should the House of Representatives issue articles of impeachment. If those Senate numbers hold, or get even better for Republicans, the president would need only 34 of those senators to stand by his side and vote not to remove him from office to survive impeachment. The notion that 18 senators would defect from the Republican Party to provide the two-thirds supermajority required for removal of the president from office is dubious at best, especially in today’s political climate.

The president would do well not to take action against the special counsel and, instead, allow impeachment proceedings to play out in the Senate, should it get there — for many reasons.

Seth B. Waxman, a partner at the Dickinson Wright law firm in Washington, D.C., served as a federal prosecutor in the United States Attorney’s Office for the District of Columbia, and has worked as a criminal defense lawyer in Washington and New York.