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Neal Katyal @neal_katyal
, 28 tweets, 6 min read Read on Twitter
1.THREAD. CAN TRUMP FIRE MUELLER? Robert Mueller is a registered Republican nominated by 2 difft Repub. Presidents. With all the renewed attention,I'm outlining how the Special Counsel Regulations (which I drafted for DOJ in 1999) work.This piece details:…
2. First thing: the regulations do not prevent Trump from firing Mueller. In an ordinary criminal case, if you are the target, you don’t normally get to fire the prosecutor. But things are a bit difft if you happen to be the President.
3. The President under our Constitution has the prosecution power. So prosecutors serve as an extension of the Presidency. For that reason, when the regs were drafted, there was a bipartisan consensus that a President could fire a Special Counsel.
4. This isn’t, contrary to so-many tweets, some secret that @NatashaBertrand
and I have unearthed and giving Trump’s team ideas about.Indeed, the most famous episode in modern history about Presidents and prosecutors revolves around exactly this:Nixon’s Saturday Night massacre.
5. That didn’t end too well for Nixon.
6. When we drafted the Special Counsel Regs, we knew that a President that took this step would be following in Nixon’s footsteps, firing a prosecutor in a botched attempt to hide the truth.
7. We could not prevent the prosecutor from being fired, but we could create regs that would force tremendous sunlight into the process. The firing would have to be done openly.
8. Otherwise, a President (or AG) could be tempted to order certain lines of prosecutorial inquiry closed, secretly instructing just the prosecutor, and then use his classification powers to claim national security requires secrecy about his orders.
9. This President seems particularly inclined toward these kinds of antics.
10. So now, if the President wants to fire Mueller, he has to do it openly. He can try to fire him directly, or order Rod Rosenstein (the Acting AG) to do it. This thread details it all:
11. Either way will immediately prompt a constitutional crisis, the likes of which many of us have not seen in our lifetimes.
12. There can be no possible justification for such a step, except that, if he does it, that Trump is afraid of the truth coming out. Our Founders designed a system with very strong safeguards against an abusive prosecutor.
13. A prosecutor cant even indict someone without a Grand Jury signing off. And of course a federal prosecutor cannot convict unless a jury of one’s peers signs off-unanimously–on it. Plus a criminal trial has, presiding over it, a federal judge, Pres. appointed/Senate confirmed.
14. Mueller is also subject to DOJ supervision as he has only day-to-day independence. It’s a delicate system, I detailed it in this thread: . Bottom line is that Trump has his own guy, Rosenstein, as an addtl check beyond anything you or I would ever have
15. A President who is afraid of all of that should look suspicious to anyone, regardless of party.
16. And a President who fires a prosecutor now, before all the facts have been uncovered, will be hiding the truth from the American people.
17. That un-American act would be horrendous in any circumstance, but here, when the investigation is about our most dangerous adversary infiltrating our Presidential election, unforgivable.
18. Right now, there is only 1 guy getting to the facts. Robert Mueller. And it’s Scary Stuff – involving a consensus by our Intel Community that Russia interfered w/our election.
19. The American people deserve to know the facts.
20. The complaints against Mueller would be 1 thing if Congress were vigorously investigating. But as the late-night Devin Nunez activities suggest, party politics and perhaps other more nefarious things mean that isn’t happening.
21. So if Trump lets Mueller investigate the case and lets him uncover the facts, and Mueller goes to trial and loses, fine. Fire Mueller. But to do it now would be an end-run around everything our constitutional system stands for.
22. And of course, Mueller has already moved with tremendous speed, bringing indictments against President Trump’s #1 National Security Advisor and also the head of his campaign. That’s incredibly damning, already. And there’s obviously more to come.
23. Despite Trump’s weak denials, there are hints that firing Mueller is his strategy. Remember he denied he was going to fire Comey before doing it, said he had “confidence in him.”…
24. Indeed, we shouldn’t lose sight that this is Trump’s go-to strategy regarding so many other key institutions that safeguard our Democracy.
25. Trump attacks any institution that stands in his way:
(1) The media
(2) The Democratic Party
(3) The Republican Party
(4) “so-called Judges”
(5) Comey
(6) His own Deputy AG, Rod Rosenstein
(7) The FBI
(8) The Intelligence Community
(9) Career civil servants
26. Maybe you think Trump is right about all of this. Fine. But our Founders thought – just on the off-chance that men aren’t angels, we need checks and balances.
27. Mueller is that check and balance, as Comey was before him.
28. If Trump ends Mueller, it will be the end of him.
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