Trump Risks Impeachment If He Fires Mueller

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(Bloomberg View) -- According to numerous reports, President Donald Trump is giving serious thought to firing Deputy Attorney General Rod Rosenstein, special counsel Robert Mueller or both. His lawyers should be telling him something pointed and specific: If the dismissal is aimed at shutting down Mueller’s investigation, it would probably be an impeachable offense.

In any administration, the president’s lawyers quickly learn that one of their most important jobs is to say “no” to their boss — and to tell him things he does not want to hear.

In the early 1980s, I was privileged to learn this lesson from Theodore Olson, then the assistant attorney general in charge of the Justice Department’s Office of Legal Counsel, which advises the president on the legality of possible courses of action. Olson was fiercely loyal to President Ronald Reagan, and he was strongly supportive of most of the policy directions that Reagan favored.

But on important issues — including abortion, desegregation and the jurisdiction of federal courts — some of Reagan’s advisers supported proposals that were inconsistent with the law. As Olson saw it, his obligations to the president and to the American people required the Justice Department to insist on the legal constraints, and to do so in no uncertain terms. Often the best way to protect a president is to steer him away from a course of action that he is inclined to favor.

During my time at the Office of Legal Counsel, I never saw a need for any warning about the risk of impeachment. But there is no question that behind closed doors, presidential advisers have offered such warnings in both Democratic and Republican administrations.

That helps answer an enduring question, which is why, in well over 200 years, only two presidents (Andrew Johnson and Bill Clinton) have been impeached by the House of Representatives — and none has been removed from office by the Senate. Even when things get tough, the very presence of the impeachment mechanism usually deters presidents from coming anywhere close to the constitutional line, at least when they are receiving candid advice from their lawyers.

Firing Rosenstein or Mueller could well cross that line.

Under the Constitution, a president can be impeached for “Treason, Bribery, and other High Crimes and Misdemeanors.” The discussions in the founding era make it unmistakably clear that an egregious abuse of presidential authority would count as a high crime and misdemeanor, even if it is not in violation of the criminal law.

Founding-era discussions also make it clear that impeachment is not supposed to be a partisan affair, a response to intense policy differences, a product of anger at the commander-in-chief, or an effort to undo the results of an election. For impeachment, what is necessary is some presidential action that counts, in Alexander Hamilton’s words, as “the abuse or violation of some public trust.”

Trump’s lawyers must be keenly aware that shutting down an investigation of Russia’s role in the 2016 presidential election could easily qualify as such an abuse. This is so even if there was no Russia connection to Trump’s campaign. After all, the framers and ratifiers of the Constitution were acutely concerned about foreign influences on our system of government (a fact that explains the requirement, puzzling to many, that all presidents must be “natural born” citizens).

It is also, of course, the job of presidential lawyers to think of counterarguments, and to do what they can to defend their boss.

The best argument in the current situation would be that discharging Rosenstein or Mueller would not be an effort to stop a legitimate investigation, but instead to terminate a process that has become a circus -- disruptive to the operations of the presidency, extending far beyond the issue of Russian interference, unacceptably partisan, excessively zealous, and encompassing a wide range of self-evidently unrelated matters (such as the payment of “hush money” to Stormy Daniels).

Along with many of his supporters, Trump undoubtedly believes that this argument is exactly right. But if Trump’s lawyers are doing their job, they will add that it would be difficult to respond to the objection that discharging Rosenstein or Mueller would be an effort to promote the personal self-interest of the president — by stopping an authorized investigation of important issues in its tracks, well before it has had a chance to run its course.

After more than a year in office, any president, confronted with serious domestic and international challenges, would be frustrated (at best) with a time-consuming inquiry that he believes to be pointless. But if Trump really is thinking about firing Rosenstein or Mueller, his lawyers -- focusing directly on the nation’s founding document -- should offer unambiguous advice: No, sir.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg View columnist. He is the editor of "Can It Happen Here? Authoritarianism in America" and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

For more columns from Bloomberg View, visit http://www.bloomberg.com/view.

©2018 Bloomberg L.P.

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