By Frank Bowman
In last Friday’s New York Times, John Yoo and Sakrishna Prakash contend that President Trump has the power to fire special counsel Robert Mueller “directly,” meaning without complying with the Department of Justice regulation mandating that a special counsel can be fired “only by the personal action of the Attorney General” (or if the AG is recused, his designee) and then only for “good cause,” such as “misconduct, dereliction of duty, incapacity, [or] conflict of interest.” In plain terms, they are saying that the president can simply ignore the Justice Department’s chain of command and its regulations and fire Mueller for any reason or, as they insist, “no reason at all.”
It is important to understand how radical this argument is. Most of the commentary about how Mr. Trump could fire Mr. Mueller accepts the premise that Justice Department regulations specifying how and by whom a special counsel can be removed are laws, binding both officers of the Justice Department and the president himself. Hence, the endless discussions of whether Trump will embark on a “Saturday Night Massacre” round of firings in search of a senior Justice Department official willing to behead Mueller.
To non-lawyers, it might seem odd that an internal departmental rule called a “regulation” is treated as equivalent to a “law.” But in our legal system, departmental regulations promulgated using procedures prescribed in the “Administrative Procedure Act” are “law.” And they every bit as binding on presidents or anyone else as a congressionally enacted statute or a decision of the Supreme Court. The Justice Department’s regulations on the special counsel are precisely this kind of regulatory law.
Yoo and Prakash try to evade this elementary reality of modern American jurisprudence by referring to Article II, Section 3, of the Constitution, which requires a president to “take care that the laws be faithfully executed.” They say this constitutional language means that the president has absolute control over the federal law enforcement function and thus can direct that legal actions be terminated and federal law enforcement officers fired whenever it suits him. According to them, the “take care” clause means that a president cannot be bound by any regulation, or indeed any statute that Congress might pass, purporting to limit his power to dismiss subordinates in the executive branch.
They’re wrong. Though they focus here on the narrow issue of the tenure of a special counsel, their position is merely a local manifestation of the “unitary executive” theory occasionally fashionable on the fringes of the intellectual far right. It remains a fringe view because, if accepted, it would strike a crippling blow to the rule of law in this country.
Consider its effect in the law enforcement setting. If the Take Care Clause effectively overrides Justice Department regulations on the special counsel, it also overrides all statutory and regulatory rules purporting to safeguard federal employees from arbitrary dismissal. In that case, the president may not only fire a prominent special appointee like Robert Mueller, without process and without cause, but also every career prosecutor, FBI agent, analyst, and secretary who worked on a case that displeased the president.
A criminal justice apparatus cowed by the chief executive and wielded only according to his unchecked whims is the first step on the road to autocracy.
Moreover, the extremist view propounded by Yoo and Prakash resonates far beyond criminal justice. After all, the president’s obligation to ensure faithful execution of “the laws” is not limited to criminal statutes. It extends to all of the myriad laws – constitutional, statutory, and regulatory – that govern all aspects of our national existence. A president is every bit as obliged to ensure faithful execution of laws governing revenue collection, fair housing, collective bargaining, workplace safety, environmental protection, and the distribution of Medicare and Social Security benefits as he is to ensure proper administration of laws against fraud and official corruption.
Thus, if Yoo and Prakash are right, the president cannot constitutionally be prevented from firing any executive branch employee in any department whenever he feels that such an employee isn’t executing the law as the president would prefer it executed. For them, legal protections against arbitrary or politically motivated dismissal can be of no effect so long as it is the president who orders a firing. In short, their reading of the constitution would effectively destroy the federal civil service system which, since 1883, has protected the country from the corruption endemic whenever a president or ruling party has unchecked power to dismiss federal employees who will not obey directions from political superiors.
No court will, or should, accept a reading of the constitution so contrary to long-settled legal norms and so destructive of the professionalism and political neutrality of federal civil servants.
It has been reported that the White House has sought advice on whether Robert Mueller might be directly dismissed, and that it has received some scholarly support for the idea. One hopes that Mr. Trump has not relied on ideas like those of Professors Yoo and Prakash, which combine the defects of being constitutionally unsound, unlikely to find acceptance in the courts, and deeply subversive of the rule of law.