Recent attacks against Robert Mueller by President Trump via Twitter have left the public in nervous anticipation of the Special Counsel’s termination. Some fear that the loss of Robert Mueller would be devastating to his investigation. Ronald Weich, former federal prosecutor and dean of the University of Baltimore law school, has said that “Mueller is a towering figure . . . . he is irreplaceable.” However, others are skeptical that firing is even possible: Howard Goldsmith, Harvard Law professor, has pointed out that the Department of Justice regulations require for any dismissal “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” So the question becomes, does Trump have reason enough to fire Robert Mueller?
Trump’s recent tweets purport to provide what justification he may need to fire Mueller. Quoting Alan Dershowitz, former Harvard Law professor and political analyst, he tweeted “Special Council is told to find crimes, whether crimes exist or not.” In a subsequent tweet, Trump wrote “there was no probable cause for believing that there was any crime, collusion or otherwise, or obstruction of justice!” There is debate as to whether there was probable cause to fuel Mueller’s investigation (I think it’s fairly certain there was). However, there is a question as to whether the belief that there was no probable cause could justify firing Mueller.
The specific regulation Goldsmith referenced was Section 600.7 of Title 28 of the Code of Federal Regulations. Subsection (d) reads:
The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.
The listed offenses: misconduct, dereliction of duty, incapacity, conflict of interest, and other good cause seem to set a broad standard. The Department of Justice provides some administrative guidance of this subsection:
Violation of Departmental policies is specifically identified as a ground that may warrant removal. The willful violation of some policies might warrant removal or other disciplinary action, and a series of negligent or careless overlooking of important policies might similarly warrant removal or other disciplinary action. Such conduct also would be encompassed within the articulated standard of misconduct or dereliction of duty. There are, of course, other violations of Departmental policies and guidelines that would not ordinarily be grounds for removal or other disciplinary action.
What this tells us is that at least in some cases, the intentional violation of department policy or a series of negligent acts which violate department policy could warrant dismissal. Department of Justice policy is contained in 5 C.F.R sections 2635, 3801 and 28 C.F.R section 45. These policies are reflected by, and to a degree summarize by, Executive Order 12731, which says, among other things, that it would be a violation of ethics to:
. . . .
(e) Employees shall put forth honest effort in the performance of their duties . . . .
(h) Employees shall act impartially and not give preferential treatment to any private organization or individual . . . .
(i) Employees shall protect and conserve Federal property and shall not use it for other than authorized activities . . . .
One could argue that Robert Mueller, by pursuing an investigation without probable cause, is not putting forth an honest effort into his duties, is acting with partiality against the President, and is misusing government resources. That being said, it would be a very poor argument. Even if one were to assume Mueller had no probable cause, it would be hard to argue that he did not believe he did. That is to say, it would be hard to show Mueller acted without an “honest effort,” or that he was “impartial.” Additionally, because Mueller did receive approval by the courts, it is not apparent that his activities were “[un]authorized.” The lesson to be taken from the examination of these policies is this: Trump may try to get Mueller fired, but justification will indeed be hard to find.