In trying to fire Mueller  Trump digs his own legal grave
Opinion   If  President Trump  were to fire the bane of  his  legal troubles   he  could spark a legal and constitutional crisis. Post Opinion writer Quinta Jurecic lays out how  Trump  could get rid of special counsel Robert Mueller  and what would happen as a result. (Adriana Usero/The Washington Post)
 President Trump  ordered the firing last June of Robert S. Mueller III  the special counsel overseeing the Russia investigation  according to four people told of the matter  but ultimately backed down after the White House counsel threatened to resign rather than carry out the directive. â¦ Mr. [Donald] McGahn disagreed with  the president âs case and told senior White House officials that firing Mr. Mueller would have a catastrophic effect on Mr. Trumpâs presidency. Mr. McGahn also told White House officials that  Mr. Trump  would not follow through on the dismissal on  his  own.  The president  then backed off.
First   Trumpâs  failed attempt to fire Mueller was apparently known to many individuals  indicating both a lack of discipline on  Trumpâs  part (what else did  he  say to these people?) and possible waiver of any privilege. If McGahn can be compelled to discuss such interactions with  Trump  with the special counsel   he  may be able to testify as to the presidentâs motive both in firing FBI Director James B. Comey and attempting to fire Mueller. We should wonder whether McGahn and/or Mueller determined that the privilege was waived because  Trump  had ordered McGahn to do something illegal (i.e. obstruct justice by firing Mueller). It may come as a surprise to  Trump  to learn that no privilege would apply in such a case.
Second  âAttempted obstruction is obstruction even when the perpetrator backs down after failing to get his consigliere to do the deed for him â constitutional lawyer Larry Tribe emails me. âIn addition  itâs part of a persistent pattern of obstruction. And itâs also strong evidence of consciousness of guilt.â As the Times report notes   Trump  has âlong demonstrated a preoccupation with those who have overseen the Russia investigation.â He threw a fit when Attorney General Jeff Sessions recused himself from the Russia probe  and he fired Comey after he failed to extract an oath of loyalty. The attempt to decapitate the probe again goes to  Trumpâs  intent to stymie an independent investigation and  his  seeming cluelessness that these actions would be potentially illegal  an abuse of  his  power.
If one is constructing a case evidencing a deliberate  ongoing plan to disrupt and stop the Russia investigation so as to protect  Trump  and  his  family  this is certainly one nugget of damaging information. Norm Eisen  a former White House ethics lawyer  agrees that âit is another piece in the obstruction mosaic. Like the loyalty demand; telling Comey to let [the probe of Michael] Flynn go; or firing Comey  it evinces corrupt intent. What is  Trump  trying to hide? Whatever it is  protecting  himself   family or others is not a proper purpose.â  He  adds  âItâs wrongâ and so is more evidence of the corrupt intent needed to find obstruction.â (Eisen and his colleagues at the Brookings Institution have written a brief on the case for obstruction  which will presumably need to be updated now.)
 President Trump  is acting macho by saying  he 'll testify under oath in the Russia probe  says columnist Ruth Marcus. But won't the real test come down to whether he tells the truth? Marcus joins opinion writers Jonathan Capehart  Christine Emba and Stephen Stromberg in the weekly roundtable  "It's Only Thursday." (The Washington Post)
Third   the president  does back down when confronted. On one hand  McGahn should be commended for standing up to  Trump  and should set an example for others who may be pressured to carry out illegal or problematic actions. However  as former director of the Office of Government Ethics Walter Shaub tells me  âBefore anyone goes canonizing McGahn  letâs pause to recall the media reports about  him  pressuring Sessions not to recuse and seeking access to FISA warrant information.â It is not clear whether McGahn simply thought the move would be politically disastrous or if  he  concluded firing  Mueller  would itself constitute obstruction of justice  a crime. As an aside  âItâs also worth noting that this is not the first leak to paint McGahn in a positive light at  Trumpâs  expense â says Shaub. âIf I were  Trump   Iâd find myself wondering about McGahn.â
Fourth  the attempt to fire  Mueller  suggests  Trumpâs  childlike belief that the investigation would not proceed  or would not proceed as effectively  without  Mueller . To the contrary  Deputy Attorney General Rod J. Rosenstein would have appointed a replacement  and the same FBI investigators would have continued their digging. The files would all be preserved.  Trump  personalizes everything  apparently ignorant of the institutional procedures built into the system to ensure that no one personâs removal can keep the wheels of justice from turning. That inability to recognize organization rules and norms may be his downfall.
Fifth  this underscores how irresponsible Republicans have been in failing to shore up protections for the special counsel. Next time  McGahn may not be there or be able to head off an order to fire  Mueller  when  Trump  loses  his  cool. Republicans â for the presidentâs own protection â need to bring up legislation allowing notice of a decision to fire  Mueller  and/or some procedural recourse if  Trump  does pull the trigger. âWhile credit goes to Don McGahn  this is a blaring alarm: if there was ever any doubt in any Republican leaderâs mind that  Trump  is willing to subvert the rule of law  that is now gone â says Ian Bassin  who heads the nonpartisan group Protect Democracy. âThe question now for Speaker of the House Paul Ryan  Senate Leader Mitch McConnell and their caucuses is whether they truly believe we are a nation of laws and not of men and what theyâre willing to do to assure that.â Unfortunately  from indulging the antics of House Intelligence Committee Chairman Devin Nunes (R-Calif.) to refusing to set up a select committee  GOP congressional leaders seem to have already answered the question.
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Opinion   If   [TGT] were to fire the bane of   [TGT]   legal troubles    [TGT]   could spark a legal and constitutional crisis. Post Opinion writer Quinta Jurecic lays out how   [TGT] could get rid of special counsel Robert Mueller  and what would happen as a result. (Adriana Usero/The Washington Post)
  [TGT] ordered the firing last June of Robert S. Mueller III  the special counsel overseeing the Russia investigation  according to four people told of the matter  but ultimately backed down after the White House counsel threatened to resign rather than carry out the directive. â¦ Mr. [Donald] McGahn disagreed with  the president âs case and told senior White House officials that firing Mr. Mueller would have a catastrophic effect on Mr. Trumpâs presidency. Mr. McGahn also told White House officials that   [TGT] would not follow through on the dismissal on   [TGT]   own.   [TGT] then backed off.
First   Trumpâs  failed attempt to fire Mueller was apparently known to many individuals  indicating both a lack of discipline on  Trumpâs  part (what else did   [TGT]   say to these people?) and possible waiver of any privilege. If  [TGT]  [TGT]   may be able to testify as to the presidentâs motive both in firing FBI Director James B. Comey and attempting to fire Mueller. We should wonder whether McGahn and/or Mueller determined that the privilege was waived because   [TGT] had ordered McGahn to do something illegal (i.e. obstruct justice by firing Mueller). It may come as a surprise to  [TGT] to learn that no privilege would apply in such a case.
Second  âAttempted obstruction is obstruction even when the perpetrator backs down after failing to get his consigliere to do the deed for him â constitutional lawyer Larry Tribe emails me. âIn addition  itâs part of a persistent pattern of obstruction. And itâs also strong evidence of consciousness of guilt.â As the Times report notes    [TGT] has âlong demonstrated a preoccupation with those who have overseen the Russia investigation.â He threw a fit when Attorney General Jeff Sessions recused himself from the Russia probe  and he fired Comey after he failed to extract an oath of loyalty. The attempt to decapitate the probe again goes to  Trumpâs  intent to stymie an independent investigation and  his  seeming cluelessness that these actions would be potentially illegal  an abuse of  his  power.
If one is constructing a case evidencing a deliberate  ongoing plan to disrupt and stop the Russia investigation so as to protect   [TGT] and  his  family  this is certainly one nugget of damaging information. Norm Eisen  a former White House ethics lawyer  agrees that âit is another piece in the obstruction mosaic. Like the loyalty demand; telling Comey to let [the probe of Michael] Flynn go; or firing Comey  it evinces corrupt intent. What is   [TGT] trying to hide? Whatever it is  protecting   [TGT]    family or others is not a proper purpose.â  He  adds  âItâs wrongâ and so is more evidence of the corrupt intent needed to find obstruction.â (Eisen and his colleagues at the Brookings Institution have written a brief on the case for obstruction  which will presumably need to be updated now.)
  [TGT] is acting macho by saying   [TGT]  'll testify under oath in the Russia probe  says columnist Ruth Marcus. But won't the real test come down to whether  [TGT]  tells the truth? Marcus joins opinion writers Jonathan Capehart  Christine Emba and Stephen Stromberg in the weekly roundtable  "It's Only Thursday." (The Washington Post)
Third   the president  does back down when confronted. On one hand  McGahn should be commended for standing up to  [TGT] and should set an example for others who may be pressured to carry out illegal or problematic actions. However  as former director of the Office of Government Ethics Walter Shaub tells me  âBefore anyone goes canonizing McGahn  letâs pause to recall the media reports about  him  pressuring Sessions not to recuse and seeking access to FISA warrant information.â It is not clear whether McGahn simply thought the move would be politically disastrous or if  he  concluded firing  Mueller  would itself constitute obstruction of justice  a crime. As an aside  âItâs also worth noting that this is not the first leak to paint McGahn in a positive light at  Trumpâs  expense â says Shaub. âIf I were   [TGT]  find myself wondering about McGahn.â
Fourth  the attempt to fire  Mueller  suggests  Trumpâs  childlike belief that the investigation would not proceed  or would not proceed as effectively  without  Mueller . To the contrary  Deputy Attorney General Rod J. Rosenstein would have appointed a replacement  and the same FBI investigators would have continued their digging. The files would all be preserved.   [TGT] personalizes everything  apparently ignorant of the institutional procedures built into the system to ensure that no one personâs removal can keep the wheels of justice from turning. That inability to recognize organization rules and norms may be  [TGT]  downfall.
Fifth  this underscores how irresponsible Republicans have been in failing to shore up protections for the special counsel. Next time  McGahn may not be there or be able to head off an order to fire  Mueller  when   [TGT] loses  his  cool. Republicans â for the presidentâs own protection â need to bring up legislation allowing notice of a decision to fire  Mueller  and/or some procedural recourse if   [TGT] does pull the trigger. âWhile credit goes to Don McGahn  this is a blaring alarm: if there was ever any doubt in any Republican leaderâs mind that   [TGT] is willing to subvert the rule of law  that is now gone â says Ian Bassin  who heads the nonpartisan group Protect Democracy. âThe question now for Speaker of the House Paul Ryan  Senate Leader Mitch McConnell and their caucuses is whether they truly believe we are a nation of laws and not of men and what theyâre willing to do to assure that.â Unfortunately  from indulging the antics of House Intelligence Committee Chairman Devin Nunes (R-Calif.) to refusing to set up a select committee  GOP congressional leaders seem to have already answered the question.
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