ALERT: Trump signals he’s moving towards a new “massacre”

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.]

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. Father of three, married to a Canadian, but I'm not laughing at any of the "So you really can move to Canada!" jokes in 2016. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I'm working on the Emoluments litigation against Trump, as well as a history of prosecutors and American politics, and another project on the origins of "independent agencies" in America.

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