Sunday, April 15, 2018

Last Call For Courting Disaster

The Trump regime has long insisted that it has unlimited power over firing Robert Mueller and can choose to do so at any time for any reason, and made that statement again last week.

The White House “has been advised” that President Donald Trump has the authority to fire Special Counsel Robert Mueller, Press Secretary Sarah Huckabee Sanders said Tuesday.

Trump fumed to reporters about Mueller’s investigation into Russian meddling in the 2016 campaign on Monday after the FBI raided the office and other properties of his personal lawyer, Michael Cohen. The president described the raid as a crime, called the probe “a disgrace” and “an attack on our country” and entertained a question about whether he would fire the special counsel, but didn’t directly answer it.

“We’ll see what happens,” he said.

Sanders, asked repeatedly about the remarks on Tuesday, referred many questions to Trump’s lawyers and the Department of Justice. But asked whether Trump can fire Mueller, she insisted that he could.

We’ve been advised that the president certainly has the power to make that decision,” she said, an answer that suggests the White House has explored the matter.

Even with some Republicans saying that he shouldn't fire Robert Mueller, no Republican has ever said that Trump lacks the authority to do so, nor do they see the need to make it clear through legislation that he can't.

Senate Republican leaders sharply warned President Donald Trump not to fire Robert Mueller III on Tuesday - but they once again stopped short of embracing legislation to protect the special counsel.

Their reluctance to take more forceful action came as Democratic leaders voiced new urgency to shield Mueller a day after Trump said he had been encouraged by some to dismiss the special counsel. At least one rank-and-file Republican endorsed moving forward soon with a bill to protect him.

But Senate GOP leaders were not budging from their position against taking preventive action, underscoring the downside they have long seen in being too confrontational against the leader of their party. Even at moments of great uncertainty about what Trump will do next, congressional Republican leaders have opted not to further agitate him.

"I haven't seen clear indication yet that we needed to pass something to keep him from being removed, because I don't think that's going to happen," said Senate Majority Leader Mitch McConnell, R-Ky. McConnell did not elaborate on why he believed that.

And should Trump fire Mueller's current boss, Deputy AG Rod Rosenstein, well, they've laid out a succession plan for that, too.

Rosenstein, the No. 2 official at the department, is supervising the Mueller probe because Attorney General Jeff Sessions recused himself from all matters related to the 2016 presidential campaign
So if Rosenstein is fired or recuses himself (as a witness to key events), someone else at the Justice Department will have to manage the investigation. 
This is where the department's succession plan and the President's executive order for vacancies come into play. 
The following list of individuals -- which is a mashup of officials because certain Trump nominees have not yet been Senate-confirmed -- would be next in line to step in Rosenstein's shoes:

  1. Solicitor General Noel Francisco
  2. The assistant attorney general for the Office of Legal Counsel, Steven Engel
  3. The assistant attorney general for national security, John Demers
  4. The US attorney for the Eastern District of North Carolina, Robert Higdon
  5. The US attorney for the Northern District of Texas, Erin Nealy Cox  
Under this hypothetical, Francisco would be the first in line to supervise Mueller. But Rosenstein's acting principal associate deputy, Ed O'Callaghan, would become acting deputy attorney general for all other regular duties.

Now, I always thought it was odd that the Solicitor General, the government's lawyer before the Supreme Court, would be the number three person at the DoJ, followed by four lawyers all appointed by Trump. And yes, Francisco was appointed by Trump too, he was on Dubya's recount legal team back in 2000.

"So what does all this mean, Zandar?" you ask.

It means that alarm bells should be ringing all over Washington DC.

It means Donald Trump is going to try to fire Rod Rosenstein and Robert Mueller, and soon. 

Because Noel Francisco is auditioning for Rosenstein's job by arguing before the Supreme Court that Trump can fire Mueller.

The Supreme Court is set to hear a seemingly minor case later this month on the status of administrative judges at the Securities and Exchange Commission, an issue that normally might only draw the interest of those accused of stock fraud.

But the dispute turns on the president's power to hire and fire officials throughout the government. And it comes just as the White House is saying President Trump believes he has the power to fire special counsel Robert S. Mueller III.

Trump's Solicitor Gen. Noel Francisco intervened in the SEC case to urge the high court to clarify the president's constitutional power to fire all "officers of the United States" who "exercise significant authority" under the law.

"The Constitution gives the president what the framers saw as the traditional means of ensuring accountability: the power to oversee executive officers through removal," he wrote in Lucia vs. SEC. "The president is accordingly authorized under our constitutional system to remove all principal officers, as well as all 'inferior officers' he has appointed."

Yes, this is what you think it is.  Trump wants a call on firing Mueller from the Supreme Court.

In addition to representing the administration before the Supreme Court, Francisco, a former law clerk for the late Justice Antonin Scalia, could be in line to oversee the Mueller inquiry if Deputy Atty. Gen. Rod Rosenstein is fired. Atty. Gen Jeff Sessions has recused himself from the investigation.

Peter Shane, a law professor at the Ohio State University, called Francisco's argument a "radical proposition," and one that goes beyond what is at issue in the case. The justices said they would focus only on how the SEC in-house judges are appointed. But Francisco is asking them to go further and rule on the "removal" issue.

"The solicitor general is obviously trying to goad the court into a broad statement about the removability of all officers of the United States," Shane said. "Were the court to make any such statement, it would surely be cited by Trump as backing any move by him to fire Mueller directly."

It's possible that this is just a contingency plan.  Trump's lawyers continue to insist he has the power to fire Mueller anyway.  But should the courts make such a call in this case, Trump would have the cover he needs.

Now I think the Supreme Court won't address this issue yet and could even ask the Trump regime to refer the issue to Congress if they want increased authority.  Such a statement could imply that Trump doesn't have the power to fire Mueller however, and I think SCOTUS may punt completely and keep the narrow focus.

But the fact Francisco is even asking the courts for this is a dead giveaway that Trump wants to make this move ASAP.

Be ready.

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