Breaking news THREAD: White House says Trump has been advised that he has power to fire Mueller. Here are my arguments about why he's WRONG. 1/ Intro: I wrote yesterday that Mueller and Rosenstein maybe anticipated raid would set off final tantrum. slate.com/news-and-polit…
2/ Most basically, it is obstruction of justice: 18 U.S.C. 1512(c)(2):
“Whoever corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.” shugerblog.com/2017/06/07/obs…
“Whoever corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.” shugerblog.com/2017/06/07/obs…
3/ I wrote in June that Trump's firing of Comey was arguably sufficient for obstruction charges, given his own statements revealing his corrupt intent. Firing Mueller would be a far stronger case. I wrote this in Dec. about obstructing Flynn investigation: shugerblog.com/2017/12/04/yes…
4/ @AlanDersh and others argued that the president can't obstruct justice with official acts like firings. Wrong. A president can't take a bribe to fire or nominate or sell off pardons. If bribery laws limit official powers, so too do obstruction laws: shugerblog.com/2017/12/12/yes…
5/ Obstruction was Big Point #1. #2 is the DOJ regulations: Only the AG—here, Rosenstein acting in that capacity—can dismiss a special counsel, & only for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause." law.cornell.edu/cfr/text/28/60…
6/ The DOJ can rescind its own regulations, which depends on Sessions and Rosenstein. The question is whether Trump can rescind DOJ regulations himself. Those who say yes rely on a rejected legal theory, "the unitary executive," that the Pres has total control over the executive.
7/ The "unitary executive theory" was rejected from the late 1800s through today in the creation of many "independent agencies" like the Fed. It was also rejected 7-1 in Morrison v. Olson in 1988, in upholding an even more independent counsel's office. @steve_vladeck @CBHessick
8/ (Small digression: I wrote an article about the rise of independent agences in the late 1800s and their significance, including the rejection of unitary executive theory. If you want, read this nice summary by Jack Beerman:) adlaw.jotwell.com/the-surprising…
9/ BIG POINT #3: The President “shall take Care that the Laws be *faithfully* executed.” This constitutional text historically imposes fiduciary duties of care and loyalty against self-dealing pardons or self-protecting firings, Ethan Leib and I argue: washingtonpost.com/opinions/this-…
10/ Ethan and I applied this fiduciary constitutional provision -- from the Take Care clause and from presidential oath -- as preventing Trump, Sessions, or someone they appoint from firing Mueller, because it would violate fiduciary duties: slate.com/news-and-polit…
Wow, this Dana Boente scoop is pretty good... I’m hearing it for the first time myself! On at 9:35ish
