NachtLaw, P.C. - Nacht & Roumel, P.C.
Protect Your Rights.
Call Today 888-312-7173

A critical moment in Mueller investigation of the President

The President is changing lawyers. He is not likely to ask me so I am happy to discuss his situation.

Too many commentators on the Mueller investigation do so from a partisan perspective. This is a legal investigation and Mueller is a professional prosecutor. For now, let us avoid discussion, that is, speculation, of the substance of the investigation. Let's be lawyerly, and talk process.

Mueller is now subpoenaing the President's business records. The President is criticizing Mueller. The President is also changing lawyers.

Let us say Mueller believes he has evidence that the President has committed a felony. He has two non-exclusive choices. He could send a report to the House of Representatives, which could choose to initiate impeachment proceedings. He could also ask the grand jury to indict, that is, to charge the President, with a crime.

The question as to whether a President may be indicted by a grand jury has never been litigated. There are sound arguments on both sides, but the more pertinent question is, can the President fire Mueller before he is indicted?

This is a close call but I suspect that given the current direction of Supreme Court case law on separation of powers and membership, the answer is "yes".

The Supreme Court has a line of cases, INS v. Chadha, 462 US 919 (1983), Mistretta v. US 488 US 361 (1988), Clinton v City of New York, 524 US 417 (1998) reiterating the critical role of separation of powers in the first three articles of the Constitution. Chadha invalidated a common practice, the "legislative veto", in which a house of Congress could make something illegal without its approval. Mistretta clarified that sentencing guidelines did not limit the power of federal judges to impose sentences. Clinton invalidated a law that gave the a president the "line item veto", the power to choose not to spend all the funds Congress had appropriated.

In each case the Supreme Court adopted a more rigid approach to the power of each branch of Government then the Congress and a President had previously followed. Under this reasoning, the President has the empower to enforce laws. All prosecutors work for him. He can fire them.

The argument in the other direction is Morrison v Olson, 487 US 654 (1988), which held that an independent counsel was constitutional. Only former Justice Scalia dissented. While Congress did not reenact that particular law, it enacted the current one allowing Attorney General Sessions to appoint Mueller as special counsel. That law prevents Mueller from getting fired without good reason. Morrison would on its face seem to be clear law that the President cannot fire Mueller.

I think that today, the Court would rule differently. The reasoning in Morrison is quite tortured. It follows a path of cases from the New Deal allowing some "independent" agencies to have directors with staggered terms that prevent any given President from controlling them. The Federalist Society, in whose camp we can include Justices Roberts, Gorsuch, Alito, Thomas, and Kennedy, has consistently advocated for overturning this line of cases. Even if Morrison remains remains good law, nothing in it prevents Trump from firing Mueller. Why? Mueller is not independent. He works for Rosenstein who works for Sessions who works for Trump.

But what about the criminal law? Is it a violation of obstruction of justice felony laws for the President to fire Mueller, or more precisely to order his subordinates to fire Mueller? Let us say that the President claims his "good reason" is that Mueller is investigating outside his limited authority. That is a much closer case. But the more practical question is who gets to decide? If Mueller is fired, then who would prosecute that violation? No one. I suspect there could be an effort to prosecute but it would be on hold pending Supreme Court review of the legality of the prosecution.

This leads us to impeachment.

Impeachment after all, is a political decision, dressed up as a legal prosecutorial one. The House of Representatives is currently in Republican control, and it is virtually impossible to imagine it impeaching the President in 2018.

After November 2018, control could switch, and some Democrats are itching for impeachment, grounds or no grounds. Should the President fire Mueller, however, the vast majority of Democrats and many Republicans will find grounds.

So the smart move for the President is to let Mueller finish his investigation, unless he is worried that the investigation will produce something so damaging that even many of his core supporters will end their support. The President's former lawyer, John Dowd, reportedly gave that advice. Mr. Dowd's departure is the latest change among President Trump's legal team as the president has sharply criticized the special counsel.

We will have to wait and see what happens next. Many think the President does not have the patience to let Mueller continue his investigation. Mueller could be investigating Trump's son-in-law, Jared Kushner, and one or more of his sons.

Will the President protect his family and risk his Presidency by firing Mueller?

Read the New York Times article, "Trump's Lawyer Resigns as President Adopts Aggressive Approach in Russia Inquiry", March 22, 2018. 

No Comments

Leave a comment
Comment Information
Email Us For A Response

Don’t Hesitate. Let Our Firm Help You Protect Your Rights.

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

We have developed a particular way we handle consultations at NachtLaw. Based on years of experience advising thousands of clients about their rights, we have settled on a method that allows our attorneys to provide the best advice possible in a setting that ensures confidentiality and promotes an atmosphere of trust.

Ann Arbor, MI
101 North Main Street Suite 555
Ann Arbor, MI 48104

Toll Free: 888-312-7173
Ann Arbor Law Office Map

Traverse City, MI
415 Cass Street Suite 2C
Traverse City, MI 49684

Toll Free: 888-312-7173
Traverse City Law Office Map

Toledo, OH
One Seagate Suite 685
Toledo, OH 43604

Toll Free: 888-312-7173
Toledo Law Office Map

Birmingham, MI
401 South Old Woodward Avenue Suite 460
Birmingham, MI 48009

Toll Free: 888-312-7173
Birmingham Law Office Map