Executive Branch

Trump’s Effort to Fire Mueller: Reactions to the New York Times Report

Susan Hennessey, Quinta Jurecic, Benjamin Wittes
Thursday, January 25, 2018, 1:00 AM

The New York Times reported Thursday evening that President Trump ordered the firing of Special Counsel Robert Mueller in June and was only dissuaded when White House Counsel Don McGahn threatened to resign rather than transmit the order to the Justice Department.

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The New York Times reported Thursday evening that President Trump ordered the firing of Special Counsel Robert Mueller in June and was only dissuaded when White House Counsel Don McGahn threatened to resign rather than transmit the order to the Justice Department. Mueller has reportedly become aware of the attempt to dismiss him in the course of investigating possible obstruction of justice by Trump and his associates.

According to the Times, Trump claimed that multiple conflicts of interests disqualified Mueller from overseeing the Russia investigation—including a fee dispute with a Trump golf club, his prior firm’s representation of Jared Kushner, and the fact that Trump had interviewed Mueller to potentially again become FBI director the day before he was appointed as special counsel. In May, career Justice Department ethics officials formally cleared Mueller to lead the probe, determining that he did not have disqualifying conflicts. In a follow-up story, the Washington Post reports that McGahn “did not deliver his resignation threat directly to Trump, but was serious about his threat to leave.”

The Times also noted that Trump considered firing Deputy Attorney General Rod Rosenstein, who appointed Mueller, in order to place Associate Attorney General Rachel Brand in charge of the investigation.

At the time Trump ordered Mueller’s firing, he was still represented by his longtime lawyer Marc Kasowitz, who took an adversarial approach to the Russia investigation. Reportedly, Trump’s new counsel, Ty Cobb, has convinced the president that “the quickest way to clear the cloud of suspicion was to cooperation with Mr. Mueller, not to fire him.” Nevertheless, the Times reports that Trump has wavered in the intervening months over the decision to fire Mueller and that in his public comments on the subject Trump has kept open the possibility of dismissing Mueller.

A few observations:

First, the Times’s reporting demonstrates just how out of control the president had become in June, less than a month after firing James Comey as FBI director. A few of his tweets from that time offer a stark reminder that the special counsel’s investigation—and Rosenstein’s appointment of Mueller—weighed heavily even in his public statements:

Presumably, the “conflicts” Trump refers to in these tweets involve Mueller’s work for WilmerHale, his onetime membership at the Trump National Golf Club and that he had interviewed for the position of FBI director, as the Times describes the president fulminating about in private.

Meanwhile, Newsmax CEO and Trump confidante Chris Ruddy made headlines that same month when he told PBS Newshour’s Judy Woodruff that the president was considering firing Mueller—a possibility about which Ruddy voiced concern. Ruddy’s comments sparked an apparent backlash among congressional Republicans, who voiced support for Mueller. In the wake of the Ruddy interview, a bipartisan group of senators introduced two pieces of legislation that would establish institutional protections against the special counsel’s firing. (Neither bill has yet proceeded to the Senate floor.) For its part, the White House issued a statement claiming that Ruddy had not spoken to the president about the subject of firing Mueller but did not deny the substance of Ruddy’s comments.

This new reporting fills in a disturbing picture of what was going on behind the scenes at the White House during this time. The Times doesn’t peg Trump’s attempt to fire Mueller to a specific date in June, so it’s impossible to know whether Ruddy spoke to Woodruff before, after or just as Trump gave McGahn the order. But in any case, Ruddy’s worries about a presidential attempt to dismiss the special counsel appear to have been firmly grounded in reality.

Second, Trump’s apparent willingness to fire the special counsel in a fit of rage—even after experiencing the blowback that followed his dismissal of Comey—drives home the fact that his hints about firing other senior members of federal law enforcement are far from idle. Indeed, the Times broke this story only days after Axios reported that Attorney General Jeff Sessions had pressured FBI Director Christopher Wray to dismiss Deputy Director Andrew McCabe. As with McGahn, Wray reportedly threatened resignation and the attorney general ultimately backed off. So when Trump hints about firing Sessions or Rosenstein, it should be clear that they may be in real danger. On the other hand, as Jack Goldsmith argued on tonight's special edition of the Lawfare Podcast, the fact that Trump could not get his own White House counsel to execute his will on this point shows that the president really is constrained in his apparent desire to shut down the Russia investigation. Particularly in combination with the Axios story about Wray, the incident paints a picture of a president who desperately wants to corrupt the justice system but just can’t get it done: malevolence tempered by incompetence, one might call it.

Third, in contrast to the many valid reasons to criticize McGahn’s White House tenure, this episode illustrates—at least in this instance—the White House counsel’s deft performance of his duties under difficult circumstances, perhaps even skillful management of a particularly ornery client. McGahn has not always behaved so admirably; he reportedly was willing to carry out Trump’s earlier instruction to pressure Attorney General Jeff Sessions not to recuse himself from this investigation. But in this instance, he allegedly managed to ride out a presidential temper tantrum, both offering the president reasonable advice and declining to carry out a presidential order clearly not made in good faith.

Fourth, the story also shows rather vividly how successful Ty Cobb has been in calming the president in the months since and persuading him to take a less adversarial posture—at least publicly—toward Mueller and the Russia investigation generally. Consider the difference between Trump in June, who actually gave an order to fire Mueller, and today’s Trump, who has turned over material the special counsel wants and allowed interviews with White House witnesses and has said he is even willing to be interviewed himself. Cobb seems to have convinced Trump that the path to making the Russia investigation go away lies in cooperation. If Cobb is correct that the Mueller investigation will end well for a cooperative Trump, this is all a laudable example of excellent client management. Cobb’s strategy, however, seems to rely on convincing Trump that the investigation is going to conclude in the near future if he just plays along. If Cobb is wrong on this point, and the investigation isn’t, in fact, close to wrapping up, then he may have simply deferred the June explosion to the date when Trump realizes that the end is not in sight. Thursday night’s story shows that this explosion, whenever it happens, can be pretty big.

Finally, congressional response thus far has tended to bolster the special counsel. Republican Senators Orrin Hatch and Jim Lankford tweeted vague support for non-interference by the White House, while Democrats Richard Blumenthal and Mark Warner were quick to declare that Mueller’s firing would cross a red line and endorsed bills designed to protect the special counsel investigation. In the end, the key constraint on the president’s ability to fire Mueller is the willingness of other actors to use their power to push back. As McGahn’s handling of the June episode shows, signaling a willingness to do so, particularly when done by Republicans, is a key deterrent.

Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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