Thread by @EricColumbus

Even if Trump can fire Mueller directly – I doubt he can legally, but he might try – there’s no value in firing *only* Mueller. Rosenstein could just appoint a replacement, and the investigation would continue. Let's examine what Trump might do instead. 1/

He could fire Mueller and, simultaneously, fire Sessions and/or Rosenstein, to prevent the naming of a replacement. But Mueller could challenge his firing and might well win. 2/

Alternatively, he could fire Sessions or Rosenstein and install someone who might go after Mueller. Let’s analyze the mechanics of that, which are tricky. 3/

If he fires Sessions, he’d obviously want to replace him with someone other than Rosenstein. The Federal Vacancies Reform Act provides for such situations, but there’s some dispute about whether it applies in cases of firing. 4/

That’s why the WH is inanely claiming that Veterans Affairs Secretary David Shulkin actually resigned, when he was obviously fired. politico.com/story/2018/03/… 5/

The administration would *probably* win a court battle over whether FVRA applies to firings, but the risk is huge – the FVRA provides that any action taken by someone installed in violation of its terms “shall have no force or effect.” 5 U.S.C. 3348(d)(1). 6/

As @NormEisen and @VBass noted (back when Scott Pruitt seemed a plausible replacement) Mueller could sue to get his job back. 7/ politico.com/magazine/story…

And Sessions is a former Senator with a lot of friends on Capitol Hill – yet another reason why firing Sessions could blow up in Trump’s face. 8/

So what about Rosenstein? If Trump fires Rosenstein, then Solicitor General Noel Francisco becomes his acting replacement pursuant to the most recent DOJ succession order. 9/

assets.documentcloud.org/documents/4361…

Would Francisco fire Mueller at Trump’s request? Can’t be sure, but I doubt it. I suspect Francisco would prefer to do the right thing rather than go down in history as Trump’s henchman. 10/

But if Trump is willing to spill enough blood, he can almost surely find someone who will fire Mueller. If Francisco quits rather than obey an order to fire Mueller, the job goes to Office of Legal Counsel head Steve Engel, who almost surely would quit as well. 11/

Then it gets a little weird. All the other offices in the DOJ succession order are currently vacant. So we turn to a presidential executive order designed to fill the gap, which lists three U.S. Attorneys as next in line. 12/ whitehouse.gov/presidential-a…

Would one of them fire Mueller? ¯\_(ツ)_/¯ But Trump can revise this EO to include any U.S. Attorney he wants, and I’m sure there’s a red-state U.S. Attorney out there willing to come to D.C. to fire Mueller and thereby burnish the resume for a future electoral bid back home. 13/

So if Trump is willing to go all last-scene-in-The-Godfather, he can definitely axe Mueller. But there could be a huge political (including impeachment) risk in doing so, especially if he has to fire multiple DOJ officials to find one who will do it. 14/

Thus, the bigger threat is that Trump he will fire *only* Rosenstein, as @AshaRangappa explained in December. 15/
slate.com/articles/news_…

As Asha notes, a replacement for Rosenstein could limit Mueller’s scope, decline to approve indictments or other investigative steps, diminish his resources, and so forth. 16/

It’s even worse than she says! While the DOJ’s Special Counsel regulations set forth certain reporting requirements – including a requirement that Congress be informed whenever a Special Counsel’s steps are overruled – Rosenstein’s replacement could simply rescind the regs, 17/

(Actually, he wouldn’t even need to do that. As @marty_lederman has noted, Mueller technically wasn’t appointed pursuant to the regulations; rather the regulations apply because said so in Rosenstein’s appointment letter. So the new DAG could simply revise the letter.) 18/

The bottom line here is that, for multiple reasons, it’s more likely Trump will go after Rosenstein than Mueller. And his idiot sidekick Devin Nunes has doing his best to give him a pretext to do so. 19/ cnn.com/2018/04/10/pol…

Let's be clear: whatever his purported reason, Trump would be firing Rosenstein solely to obstruct an investigation into his own misdeeds and those of his top aides. 20/

Thus, everyone who is up in arms about the possible firing of Mueller should be just as alarmed – if not more so – by the likelier prospect that Rosenstein may go. 21/END