This week’s revelation that Trump ordered the firing of Special Counsel Robert Mueller in June, 2017, should not have surprised many people. Perhaps more of a surprise was that Trump changed his mind when White House counsel Don McGahn threatened to quit if Trump persisted with the action.
More people, perhaps, were shocked by Sean Hannity’s on-air epiphany when the item was confirmed by - Fox News.
Several lawyers and a couple of law professors were on the various news outlets Friday evening. Professor Laurence Tribe of Harvard said that the act of a President firing Special Counsel would be illegal. The context, in which I heard the statement, was the offense would be impeachable. The problem is that once Mr. Mueller would be fired, by the time the process of impeachment was begun, files would be shredded—hihly sensitive information still is kept on paper—and hard drives wiped clean.
Mention was made of case authority that would prevent such a dismissal. In Nader v. Bork, 366 F.Supp. 104 (D.C. 1973), Ralph Nader (later dismissed as a plaintiff for lack of standing) and three members of Congress (Senator Frank Moss, Representative Bella Abzug and Representative Jerome Waldie) sought a declaratory judgment that Archibald Cox, the Watergate Special Prosecutor, had been illegally fired in the October, 1973, Saturday Night Massacre.
Unfortunately, the Court of Appeals vacated that decision on October 25, 1975. All the dust had settled, Richard Nixon had resigned and flashed his “V” signs from Marine Corps One for the last time, and any point of the litigation was moot. As a consequence, the Bork decision has no binding precedential authority. The decision has persuasive authority: “Authority that carries some weight but is not binding on a court, often from a court in a different jurisdiction.” Black’s Law Dictionary, 14th ed., 2014, p. 159.
Professor Josh Blackman, South Texas College of Law Houston, examined the history of the Nader case, the expiration of the Independent Counsel statute, the new statute and the Federal Regulations (that govern a Special Counsel ), and the crisis we would face were Trump to fire, in a round-about way, Special Counsel Robert Mueller. (lawfareblog.com/could-trump-remove-special-counsel-robert-mueller-lessons-watergate; last view 1/28/18.) Professor Blackman reaches a conclusion that the White House, in firing Mr. Mueller, “could argue that (1) ‘good cause’ exists [under FRP 600.7(d)], or (2) Section 600.7(d) violates the President’s Article II powers over foreign policy. Either route provides an executive override of the regulation.”
One must look (for persuasive authority in this area of uncharted water) to the Nader case:
It should first be noted that Mr. Cox was nominated by the President and did not serve at the President’s pleasure. As an appointee of the Attorney General, Mr. Cox served subject to congressional rather than Presidential control. See Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926).”
(366 F.Supp. at 108).
Congress created the office of Special Counsel and placed it within the Executive Branch. The office was not created by the Constitution.
Commentators on Friday did not discuss—at least when I was listenging—how Trump could be stopped from firing Mr. Mueller on Trump’s whim.
In Nader the District Court found that members of Congress could challenge the firing of the Special Prosecutor. Of equal importance is the recognition, in that case, that a President’s firing of a (then-)Special Prosecutor (and, one could imply today) a Special Counsel, as illegal acts, would be open to an action for injunctive relief by members of Congress.
Previously I wrote that Trump can fire Robert Mueller because Mr. Mueller’s office is one within the Executive branch and that Congress cannot create barriers to that action. I changed my opinion after I read the decison in Nader v Bork. There is a difference between penalty based on action against someone who carries out an illegal and action that nips that illegal act in the bud. Trump still could fire Mr. Mueller, but remedies are not confined to a slap on Trump’s wrist afterward. Injunctive relief is available as a means to prevent the action from being carried out. Okay - I was wrong on part of this. The Nader case did not "pop up" many places. For that I apologize.