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Last week, Deputy Attorney General Rod Rosenstein appointed Robert S. Mueller “to serve as a Special Counsel for the United States Department of Justice.” The order specified that “Section 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.” Perhaps the most important provision is § 600.7. Promulgated shortly after the Independent Counsel statute expired in July 1999, this regulation imposes an important constraint on the executive branch: “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”
This regulation attempts to impose meaningful restrictions on the removal of special counsels. Former acting Solicitor General Neal Katyal, who was involved in drafting Part 600 nearly two decades ago, explains that there are only two paths by which Mueller could be fired. First, President Trump “would have to direct Rosenstein to fire Mueller” for some form of misconduct that rises to the level of “good cause.” Second, Katyal notes, “Trump could order the special-counsel regulations repealed and then fire Mueller himself.”
But Watergate teaches otherwise. First, Rosenstein’s unilateral decision to impose a “good cause” standard of removal for the special counsel does not necessarily bind his successors. Second, the President could determine that Section 600.7 violates his Article II powers over removal and foreign policy and order Rosenstein, or someone else in the chain of command, to remove the special counsel. Make no mistake: Mueller’s firing would likely accelerate the end of the Trump administration. But an order from the Acting Attorney General and regulations published in the Federal Register do not serve as a meaningful bulwark for the President’s exercise of constitutional authority.
From Independent Counsel to Special Counsel
After the runaway Whitewater investigation into all aspects of President Clinton’s public and personal life, a general consensus emerged that the independent counsel provision of the Ethics in Government Act of 1978 should be allowed to expire. Even Ken Starr opposed its renewal. As Katyal recalls, what is now 28 C.F.R. Part 600 was drafted after “Attorney General Janet Reno convened an internal working group to study the matter, [which he] ran . . . for 18 months.” Ultimately, “Reno and then-Deputy Attorney General Eric Holder presented the regulations in congressional testimony. They received near-universal acclaim for striking a more proper balance.”
The removal provision, § 600.7(d), provides:
The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.
This regulation, which allowed removal for the far more nebulous “violation of Departmental policies,” differed from § 596(a)(1) of the lapsed Ethics in Government Act. The latter provided:
An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties.
Further, the Ethics in Government Act allowed removals to be reviewed by the District Court for the District of Columbia, wherein reinstatement was considered appropriate relief. No such review was countenanced by Part 600. Section 600.10 instead clarified that “[t]he regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.”
Rosenstein’s Regulatory Protections for Mueller
As a threshold matter, the removal conditions outlined in § 600.7(d) need not apply to the Attorney General’s appointment of special counsel. In December 2003, then-Deputy Attorney General James Comey appointed Patrick J. Fitzgerald to investigate the disclosure of Valerie Plame Wilson’s affiliation with the CIA. (Attorney General Ashcroft had recused). Critically, Comey did not subject Fitzgerald’s appointment to §600.7(d) or to the rest of Part 600. In one of several letters to Fitzgerald clarifying the scope of his special counsel authority, Comey specified that “my conferral on you of the title ‘Special Counsel’ in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 C.F.R. Part 600.” As the district court noted in United States v. Libby, which considered the constitutionality of Fitzgerald’s appointment, “there is no contention that the Deputy Attorney General was required to follow these regulations, and they are therefore of no moment.” As a result, Judge Reggie Walton concluded, there was no question that Fitzgerald was “essentially removable at will by the Deputy Attorney General.”
Rosenstein, however, took a different path. Part (d) of his letter expressly stated that “Section 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.”
According to media reports, Rosenstein appointed Mueller without Trump’s knowledge. Indeed, the White House was only notified 30 minutes before the public announcement was made. Is Rosenstein’s determination that Mueller should be afforded these protections binding on the executive branch? With a look back to the removal of the special prosecutor established to investigate Watergate, the answer is far from clear.
Richardson, Ruckelshaus, and Bork
In 1973 President Nixon appointed Elliot Richardson to serve as Attorney General. However, with the Watergate scandal boiling over, the Senate Judiciary Committee insisted that Richardson select a special prosecutor as a condition of confirmation. Richardson agreed, and shortly thereafter promulgated 38 C.F.R. 14688-01, which established the Office of Watergate Special Prosecution Force. As explained by the district court in Nader v. Bork, which considered the legality of the firing of special prosecutor Archibald Cox, “[t]he terms of this regulation were developed after negotiations with the Senate Judiciary Committee and were submitted to the Committee during its hearings on the nomination of Elliot Richardson for Attorney General.” Far from the “good cause” standard at issue in the Ethics in Government Act, this regulation stated that “[t]he Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part” (emphasis added).
What is often lost amidst the mythology of the Saturday Night Massacre is that Richardson did not resign because he concluded that discharging Cox would be illegal. Instead, as he explained in his resignation letter to President Nixon, Richardson felt bound by his personal commitment to the Senate to ensure Cox’s independence:
At many points throughout the nomination hearings, I reaffirmed my intention to assure the independence of the special prosecutor, and in my statement of his duties and responsibilities, I specified that he would have "full authority" for "determining whether or not to contest the assertion of 'Executive Privilege' or any other testimonial privilege." And while the special prosecutor can be removed from Office for "extraordinary improprieties," I also pledged that "The Attorney General will not countermand or interfere with the Special Prosecutor's decisions or actions."
While I fully respect the reasons that have led you to conclude that the Special Prosecutor must be discharged, I trust that you understand that I could not in the light of these firm and repeated commitments carry out your direction that this be done. In the circumstances, therefore, I feel that I have no choice but to resign.
Richardson took no issue with Nixon’s “reasons” for ordering Cox’s firing. According to an interview Richardson gave to the D.C. Bar decades later, Nixon told him, “I’m sorry that you insist on putting your personal commitments ahead of the public interest.” Richardson replied, “Mr. President, I can only say that I believe my resignation is in the public interest.” He added that Cox’s investigation did not constitute “impropriety of any sort,” let alone “extraordinary impropriety.”
After Richardson resigned, Nixon ordered Deputy Attorney General William D. Ruckelshaus to fire Cox and Ruckelshaus also refused. Like Richardson, the recently-appointed Ruckelshaus had agreed as part of his confirmation in July 1973 to support the independent special prosecutor.
According to the New York Times’ account shortly after the Saturday Night Massacre, Ruckelshaus, like Richardson, resigned because he was asked to violate his “agreement,” not because he concluded the removal would be illegal. According to the Washington Post, the White House said Ruckelshaus was actually fired.
Assuming the Post version is accurate, why did Nixon refuse to accept Ruckelshaus’s resignation? According to Bork’s 2013 autobiography, Saving Justice, “Nixon would not accept that Ruckelshaus was under the same obligations to Cox and the Senate as Richardson, and refused his resignation, choosing to fire him instead” (p. 80). In other words, Nixon accepted the validity of Richardson’s promise to the Senate, but not Ruckelshaus’s subsidiary pledge. Today, the importance of Richardson and Ruckelshaus’s commitments have largely been ignored in discussions of the Saturday Night Massacre. (Indeed, I was not familiar with this element until I researched this piece).
Bork, who made no such pledges during his confirmation as Solicitor General, did not believe himself to be under similar constraints. In his autobiography, he justified his decision to fire Cox because the regulations could not constrain the President’s authority:
When the question of whether to fire Cox came up, I was in a welter of contradictory impulses, unable to see clearly what the results would be of a firing or a refusal to fire. I recognized that the president had a clear legal authority to fire Cox and a good reason to do so. It seemed obvious to me that a lower-level executive officer could not publicly defy the president on national and, indeed, international television (emphasis added).
Judge Bork, during his testimony before the Senate Judiciary Committee in 1987 (Parts I, II, III, IV, and V), reiterated his belief that neither Richardson nor Ruckelshaus believed the regulation served as a bar to Cox’s removal. In response to a question from Senator Howard Metzenbaum (D-OH), Bork said, “I think that night all of us assumed that, as far as I know, Attorney General Richardson and Deputy Attorney General Ruckelshaus assumed that the regulation did not stand in the way of a presidential order” (p. 195).
Bork added later in the hearing that “none of us thought that that regulation was a bar to a presidential order” and that everyone in the office, Richardson included, “assumed the President could [remove Cox] over an Attorney General's regulation” (p. 235). I was not able to find Richardson’s quotation to that effect, but nothing I’ve seen is to the contrary. Both Richardson and Ruckelshaus consistently described their resignations as occasioned by their pledges to the Senate.
Finally, Bork recounts a remarkable exchange in his autobiography about the eve of the Massacre: Richardson said he could not fire Cox, so he told Bork to do so.
Richardson turned to Ruckelshaus and said, “I can’t fire Cox. Can you, Bill?” “No,” Ruckelshaus said, “it would be wrong.” When Richardson turned to Ruckelshaus it suddenly occurred to me that by regulation I was third in line at the Department of Justice. Richardson then turned to me and said, “Can you fire him, Bob?” I was taken off guard. Richardson explained that he and Ruckelshaus were in different moral positions than I was. Richardson had given Cox a charter and had promised the Senate, as a condition of his confirmation, that he would fire Cox only on the stated basis of “extraordinary improprieties,” as had Ruckelshaus. “The gun is in your hand—pull the trigger!” he exclaimed (p. 80).
“Pull the trigger” Bork did, as he did not view the regulations as a reason to ignore the President’s order. There is, however, contrary judicial authority about the legality of Bork’s firing.
Nader v. Bork
Long before he spoiled Al Gore’s Electoral College victory, Ralph Nader challenged Bork’s firing of Archibald Cox in Nader v. Bork. Judge Gerhard Gesell, a Johnson appointee to the District Court for the District of Columbia, concluded that “[t]he firing of Archibald Cox in the absence of a finding of extraordinary impropriety was in clear violation of an existing Justice Department regulation having the force of law and was therefore illegal.” The court did not address whether the imposition of the “extraordinary impropriety” violated the separation of powers or the President’s authority under Article II. Recall that more than a decade later, only Justice Scalia found constitutional infirmities in the Ethics in Government Act.
What happened after Judge Gesell’s decision on November 14, 1973 is somewhat murky, though ultimately the D.C. Circuit vacated the decision on October 22, 1975, after the Supreme Court’s decision in United States v. Nixon resulted in the release of the Watergate tapes. The D.C. Circuit’s vacatur was not reported, and I could not find a copy of the order at Docket No. 74-1620. In any event, as a result of the vacatur, the case was mooted, and Judge Gesell’s decision has no legal effect.
However, the validity of Nader v. Bork returned as an important element of then-Judge Bork’s Supreme Court confirmation hearing thirteen years later. Bork explained that “[t]he cases relied upon in Judge Gesell's opinion are all cases in which a department head issued a regulation and then himself did something in contradiction to it” and do not apply when “the President gives an order to abolish that regulation, which is, in effect, what happened” (194-95).
In response to a later question from Senator Metzenbaum, Bork added, “In this case, the President gave me an order to discharge Archibald Cox which I think overrides an Attorney General's regulation. That is why I think the action was legal” (p. 361). The longtime Ohio Senator read to Bork a sentence from the Court’s decision in United States v. Nixon (1974), “So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it.” Bork replied:
The Court responded that as long as the regulation was in force, until the President rescinded the order, there was jurisdiction; but there was no doubt that the President had the power to rescind that charter. In fact, in the letter from the President to me that night, he said, "You are to discharge Mr. Cox and abolish the office of special prosecutor." The abolition of the office was on paper only. The office continued intact. But that was a presidential rescission of the regulation . . . . [The regulation] was not extant after the President issued that order.
To Bork, it was not necessary to issue a notice in the Federal Register and go through the notice-and-comment process before terminating Cox. Indeed, there was some discussion during the hearing about how quickly such a notice could have even been published, as the Monday after the Saturday Night Massacre was a federal holiday. But to argue that the President is disabled from directing the firing an inferior officer because of the strictures of the Administrative Procedures Act cannot withstand scrutiny—at least, not without careful consideration of the President’s Article II powers. Senator Hatch described Nader v. Bork as a case where a “single federal judge . . . was caught up in the momentous events of that occasion.” Courts in that tumultuous era were willing to abandon the “presumption of regularity” due to the “uniqueness” of President Nixon.
Four decades later, the question of whether the President’s constitutional order can trump a duly promulgated regulation is still unresolved. This question could arise again if Trump orders Mueller’s removal.
Rosenstein, Brand, Boente
Watergate teaches several lessons relevant to our current situation. First, even if regulations do not trump the President’s orders, Attorneys General (or those acting in that capacity) may feel compelled to honor their word with respect to the appointment of special prosecutors. Attorney General Richardson and Deputy Attorney General Ruckelshaus resigned with honor because of pledges they made to the Senate as part of their confirmations. Along similar lines, that Deputy Attorney General Rosenstein voluntarily imposed Section 600.7(d)’s “good cause” standard on Mueller’s appointment amounts to something of a promise to the American people about the counsel’s independence. He was not obligated to do so. If asked to fire Mueller, Rosenstein would likely resign.
Second, even if one Acting Attorney General makes that pledge, his successors are not necessarily so bound. The district court in Nader explained that “we are once again confronted with a situation in which the Attorney General voluntarily limited his otherwise broad authority.” It was Richardson, a single officer-holder, who imposed that limitation on himself. To that point, Bork, as acting Attorney General, did not feel duty-bound to honor the promise that his predecessors made to the Senate. Critically, Rosenstein’s decision to impose the “good cause” standard was his, and his alone. He did not even notify the White House in advance. In contrast, Richardson and the Nixon administration worked closely in promulgating the Watergate regulations.
If Rosenstein refused an order to fire Mueller, and instead resigned, the obligation would fall to Rachel Brand, who was recently confirmed as the Associate Attorney General. Brand made no such promises during her Senate confirmation, and may disagree with Rosenstein about the need for an insulated prosecutor. After Brand, according to Trump’s February 9, 2017 executive order, the task would fall to the U.S. Attorneys for the Eastern District of Virginia (Dana Boente, who fired Sally Yates when temporarily elevated to Acting Attorney General), Northern District of Illinois, and the Western District of Missouri, respectively. At least one of these officials would have to decide whether Mueller could be fired at will, notwithstanding Section 600.7(d) and would have to consider to what extent they are bound by Rosenstein’s initial determination. As a constitutional matter, however, a single Deputy Attorney General—one who holds his office at the President’s pleasure—cannot forever bind the President’s powers.
Watergate teaches a third lesson: If someone in the chain of command follows Trump’s order to fire Mueller without a showing of “good cause,” Section 600.7(d) will serve as no constitutional barrier. That said, invariably suit will be filed under the APA seeking Mueller’s reinstatement, even though Section 600.10 expressly precludes any rights “enforceable at law or equity.”
President Has No Duty to Follow Unconstitutional Regulations
The President’s authority to decline to follow unconstitutional laws derives from his oath of office and the Take Care Clause. It has long been the executive branch’s position that the Constitution always remains superior to acts of Congress. In Zivotofsky v. Kerry (2015), as Chief Justice Roberts noted in dissent, the Court for the first time “accepted a President's direct defiance of an Act of Congress in the field of foreign affairs” that he deemed unconstitutional. But the principle has long enjoyed Supreme Court sanction in the domestic realm; decades earlier, in Myers v. United States, the Court cast no disapprobation on President Wilson’s removal of the postmaster in violation of a statute that was later found to be unconstitutional.
Citing this latter case, and several others, then-Assistant Attorney General Walter Dellinger wrote an important memorandum for the Office of Legal Counsel in 1994, concluding that “there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.” In particular, Dellinger observed, “[w]here the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment.” D.C. Circuit Judge Brett Kavanaugh reached a similar conclusion in the Notre Dame Law Review, writing that “the Executive has to follow and comply with laws regulating the executive branch—at least unless the President deems the law unconstitutional, in which event the President can decline to follow the statute until a final court order says otherwise.”
This principle applies with more potency to mere regulations than to duly enacted statutes. While, as Dellinger noted, “the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation,” no such similar respect is due to prior executive actions—even those promulgated through the notice-and-comment process.
Elections have consequences. If the President was required to file a notice in the federal register, and seek input from the public to avoid being bound by an unconstitutional regulation, then the Administrative Procedures Act would be subject to an as-applied challenge. A declaration by the President that the regulation is unconstitutional would be sufficient. This, in effect, was Bork’s explanation of how Cox was removed without a formal repeal of the regulation. (Recall, no showing of “extraordinary impropriety” was made.)
Further it makes no difference that a past executive branch sanctioned the regulation. As Chief Justice Roberts explained in Free Enterprise Fund v. PCAOB (2010), under separation of powers principles, Presidents cannot bind their successors:
Perhaps an individual President might find advantages in tying his own hands. But the separation of powers does not depend on the views of individual Presidents, see Freytag v. Commissioner, nor on whether “the encroached-upon branch approves the encroachment,” New York v. United States. The President can always choose to restrain himself in his dealings with subordinates. He cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own. (citations omitted).
Perhaps President Clinton, with eighteen months left in his administration, was willing to tie himself to the mast to protect the independence of future special counsels. But future Presidents need not agree.
The Constitutionality of Section 600.7(d)
The Court’s discussion in PCAOB is especially apt for purposes of assessing Rosenstein’s appointment of Mueller, which attempts to bind the President’s removal power, without Trump’s consent. Even during the Watergate investigation, Attorney General Richardson promulgated the removal standards with the knowledge of the White House. In his opposition to Robert Bork’s nomination to the Supreme Court, for example, Ralph Nader pointed out that “the transcript of the 1973 Senate hearings leaves no doubt that President Nixon was fully informed” of the regulations (pp. 5941-42).
President Trump has no duty to honor Rosenstein’s unilateral decision. If he decides that Mueller, an inferior officer, must be removed without a showing of “good cause,” he need only so order.
There is another possible constitutional objection President Trump could raise to the “good cause” standard. In a series of tweets, Neal Katyal suggested that the Trump Administration may defend the firing of Comey based on foreign policy concerns:
WH is exploring mounting (or creating) a foreign policy defense for firing Comey. They are trying to develop the story that Comey was creating foreign policy problems, that his investigation was undermining closer relationships with Russia, and that the Pres has the prerogative in foreign affairs to do as he sees fit. Put simply, it appears that the rationale for firing Comey will be “it’s not obstruction of justice, it’s foreign policy.
A similar rationale could extend to the firing of Mueller, whose investigation is aimed squarely at Russia. Indeed, the Nixon White House relied on just this authority when it sought to remove Cox. According to Richardson, these sorts of arguments were part of Nixon’s final pitch to the conflicted Attorney General:
I met with [Nixon] in the Oval Office. He knew I was going to resign rather than fire Cox, and he tried to talk me out of it. He painted a dire picture of the international crisis precipitated by the Yom Kippur War, the nuclear alert he had invoked the night before, and the possibility that Brezhnev would think that he has lost control of his administration. All of that was very disturbing. He urged me to delay my resignation until after this crisis had abated.
Bork offered similar accounts in his autobiography, noting that when he “got to [Chief of Staff Alexander] Haig’s office, he immediately began bloviating about the Middle East situation, and how the international strength of the president was in mortal peril” (p. 83).
To the extent that the White House determines that Mueller’s investigation is frustrating its foreign policy initiatives with Russia, or other nations, it could argue that (1) “good cause” exists, 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.
To be clear, such an action would incur a severe political cost. To supporters of the unitary executive, removing the special counsel would be constitutionally proper; to the public at large, the termination of Mueller would amount to an admission of guilt and obstruction of justice. The fallout from the firing of Mueller would likely be as explosive as the firing of special counsel Archibald Cox in 1973. However, as we learn day by day, history has a tendency to repeat itself.