Yeomans Work

Will Trump Fire Mueller? Not Yet.

December 19, 2017

In recent days, the rumor has zinged around Washington that Trump will fire Mueller on December 22, as Congress leaves town for the holidays.

The speculation is fueled by the notion that the investigation is nearing a crescendo that requires Trump to act now or face dire consequences. The accumulating evidence against Trump, his family, and his allies, complemented by a barrage of right-wing media and Congressional assaults on the legitimacy of Mueller and the FBI, buttress the notion that Trump’s allies are preparing the ground for imminent bloodletting.

I don’t buy it. Predicting Trump’s behavior is a fool’s errand. He acts impulsively, and often seems not to know in the morning what he’ll do in the afternoon. But, firing Mueller would provoke an existential crisis for Trump’s presidency. Politicians on the left and right have cited Mueller’s firing as a red line that Trump cannot cross without provoking a constitutional crisis that will put him on the path to impeachment. Trump may calculate, with some reason, that many on the right will back down, and that Republican leaders in the House will not follow through on impeachment proceedings. Regardless, firing Mueller would constitute a declaration by Trump that he is above the law. It would give the public reason to rally even more furiously in opposition to him. Firing Mueller, therefore, would be a high-stakes roll of the dice.

Trump may fire Mueller eventually, but not until he and family members have no alternatives. For now, the best guess is that Trump will continue his alternative strategy – a sustained attack on the legitimacy of institutions and individuals designed to undermine public and Congressional support for the investigation. This is an extremely dangerous and toxic strategy for the rule of law. But, given Trump’s growing success in selling this message, he is not likely to abandon it yet. Indeed, throughout the investigation, a big fear has been that regardless of how serious the wrongdoing that Mueller exposes is, a partisan Congress and exhausted public will respond with a collective “so what.” Producing that reaction now seems to be the strategy of Trump and his allies. Since impeachment, rather than prosecution, is the principal threat to Trump’s presidency, the “so what” reaction would be enough to protect his office.

We now know a good deal about some very disturbing things that actually happened. Through the Papadopolous guilty plea, we know that there was substantial contact between Trump campaign associates and the Russians. We also know from events leading up to and including the June 9, 2016 meeting at Trump Tower that Don Jr. eagerly embraced the offer of campaign assistance from the Russian government and that Jared Kushner and Paul Manafort were sufficiently involved to attend the meeting. From Michael Flynn’s guilty plea, we know that Flynn reached out to Russian Ambassador Kislyak during the transition to discuss the lifting of sanctions. It is very unlikely that Flynn acted without direction from above. We also know, based on reports of subpoenas to Deutsche Bank, that Mueller is following the money, a trail that could lead to financial improprieties and evidence that Trump is compromised. All of these matters and more remain under investigation, and we can’t yet draw firm conclusions. The possibility exists, however, that the investigation will show that the president was elected after collaboration with a hostile foreign nation that retains leverage over his conduct. Those conclusions should provoke public outrage and spur Congress to action.

Ah, but. Republicans, led by Trump with strong support from Republicans in Congress and the Fox News propaganda outlet, have refused to deal responsibly with emerging facts. Faced with two indictments, two guilty pleas, and a steady barrage of incriminating evidence, Trump and his defenders have not been able to challenge Mueller on the evidence or the law, so they have attacked the people and institutions conducting the investigation. This effort has turned into a dangerous assault on federal law enforcement and the rule of law. Trump, of course, has continued to claim the investigation is a witch-hunt concocted by Democrats to explain Clinton’s loss, and has repeatedly and falsely claimed that all agree there is no evidence of collusion (um, see above). And, he has continued his assault on the FBI, tweeting that its reputation is in “tatters.” Republicans in Congress and the right-wing media have pumped up the charges of bias, alleging that Mueller staffed his investigation with lawyers who had contributed to Clinton’s campaign or, according to strained theories, were infected by conflicts. They have also tried to resurrect delusional conspiracy theories, alleging lax treatment of Hillary Clinton by the FBI.

These allegations were given new life by the release of text messages exchanged by two FBI agents. The texts disparaged Trump, calling him an “idiot.” It’s not clear why that fact-based observation should be regarded as bias. After all, his own Secretary of State called him a “[expletive deleted] moron.” But the right-wing media and members of Congress responded with predictable outrage. Not surprisingly, these critics did not identify bias in the agents’ similarly harsh criticisms of Bernie Sanders and Eric Holder, nor were they appeased upon learning that Mueller removed one of the agents from his investigation last July when he learned of the texts. The other had already left.

Radicals on the House Judiciary Committee even called for a second special counsel to investigate bias in the FBI, seemingly unconcerned that special counsels can be appointed to investigate only allegations of criminal conduct. The allegations of left-leaning political bias in the FBI are laughable for anyone who knows the institution. Agents are members of law enforcement, who skew overwhelmingly conservative. Republicans who recklessly want to expose the political leanings of FBI agents should be careful what they ask for.

More importantly, the suggestion that the FBI or Justice Department should examine the political views of agents or attorneys as a prerequisite to employment is offensive, and betrays a failure to understand law enforcement. Such screening is prohibited by legal statute and Department of Justice regulations. Those rules were adopted to prevent the politicization of law enforcement. They are essential to stymie efforts by political leaders to reshape law enforcement in their political image and to harness it for political purposes.

FBI agents and Justice Department attorneys are selected because they are educated, thoughtful, and conscientious – in other words, people who are likely to have personal political views. The requirement is that they check those views at the door and swear allegiance to the Constitution when they enter service. It is not surprising that Trump, the narcissist who never served anything larger than his ego, and his band of shameless supporters choose not to understand that. The public must not fall for this latest assault on public servants and the rule of law. “So what” is not an acceptable response to the revelations emerging from the Russia investigation.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.