Law, History, Emoluments, the Deep State (i.e., the Rule of Law)… plus some family fun. Twitter: @jedshug
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.
Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. 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 filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.
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