The Fiduciary Executive: Sessions and Trump cannot fire Mueller

Here’s the second installment in my series with my friend and colleague Ethan Leib on the fiduciary limits on the executive branch, in Slate this week. Sessions should not be able to fire McCabe, and nor should he or Trump be able to fire Mueller, because of the fiduciary obligation under the Constitution and their oath of office to “faithfully execute” the law.

Here’s the legal procedural pay-off:

“American courts have given the language of “faithful execution” in the context of public officials enforceable meaning in past precedents, binding public officials to good faith and loyalty. For example, one case in federal court has held poultry inspectors at the Department of Agriculture to have enforceable public fiduciary obligations to the United States; another has held a former CIA agent to a fiduciary duty of confidentiality. It could be possible for Mueller to seek an injunction from a federal court based on these arguments to block his firing from any official acting for self-protection against the public interest.”

Author: Jed Shugerman

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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