Shortly after Roger Stone’s arrest on a seven-count indictment charging lying and obstruction, Prof. Bowman appeared on the Canadian news network, CTV, to comment on the case. His interview appears here.
Professor Bowman appeared today on the podcast “Lawyer2Lawyer” hosted by J. Craig Williams to discuss the Mueller investigation and its relation to the impeachment process. His fellow guest was Hans von Spakovsky of the Heritage Foundation, a former member of the Federal Election Commission and, as the Washington Post put it, “a polarizing figure in voting rights circles.”
Modest fireworks ensued. You can listen here.
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.
By Frank Bowman
In the hours following Mr. Trump’s infuriated reaction to the FBI’s search of his lawyer’s office, the media crackled with speculation that the president would fire either special counsel Robert Mueller, Deputy Attorney General Rod Rosenstein, or Attorney General Jeff Sessions, or perhaps all three together. It hasn’t happened yet. And while nothing is certain with our increasingly erratic chief executive, if he retains both a shred of rationality and advisors with some knowledge of the federal criminal system and the capacity to make their boss face reality, there will be no firings. And if there are, they won’t stop the hounds baying at Mr. Trump’s heels.
Mr. Trump wants to fire those he perceives to be his tormenters in order to make the torment – the investigations they supervise – stop. But the simple truth is that Justice Department investigations involving Mr. Trump, his campaign, his family, and his businesses have now proceeded so far that, while they could be hindered or delayed, they cannot be stopped. That Mr. Trump seems to think that a few firings would achieve that end only shows how little he understands about the federal criminal justice system and the professionals who serve it.
Trump’s most well-known problem, of course, is that, despite his press secretary’s confident assertions to the contrary, he cannot fire Mueller directly. Under Justice Department regulations, a special counsel can be “removed from office only by the personal action of the Attorney General,” or where the Attorney General is recused, by his deputy, Rod Rosenstein. So to get to Mueller, Trump would have to fire Rosenstein and then put someone in his place willing to axe Mueller.
But the Senate would not confirm an obvious hatchetman as permanent replacement to Rosenstein. So Trump would have to begin working his way down the DOJ line of succession, ordering Mueller’s removal, and then firing anyone who refused, until he found someone willing to be this generation’s Robert Bork (who as Solicitor General complied with President Nixon’s order to fire Watergate Special Prosecutor Archibald Cox). It’s possible that he could find someone pliable enough to at least consider firing Mueller.
But Trump’s problem is that firing Mueller cannot, by itself, stop the investigations run by Mueller’s office. Mueller has already filed multiple cases. Some of them, like Paul Manafort’s, remain to be tried. Mueller’s office also employs or supervises dozens of prosecutors and investigators who are actively investigating other crimes and defendants. He has collected thousands of documents and hundreds of witness interviews and presented reams of grand jury testimony. To stop all that — and to bury the results so they no longer threaten Mr. Trump – would require Trump’s chosen executioner not merely to fire Mueller, but to order the immediate cessation of all the investigative activity being carried on by Mueller’s office and the immediate destruction or sealing of all the information they had gathered.
That won’t happen. For two reasons.
First, it is extremely doubtful that Mueller’s prosecutors and agents would obey an order shutting and sealing their investigations, particularly if given for no better reason than that the President (who is a subject of their inquiry) said so. There is no legal basis for such an order. More to the point, an order to both close and suppress the results of Mueller’s investigations would itself be a plain case of obstruction of justice under either 18 U.S.C. 1503 or 1512.
Second, no rational Rosenstein replacement, no matter how deeply in thrall to Mr. Trump, would order Mueller’s work both stopped and sealed. Any person who gave such an order would, at one stroke, commit career suicide and become a criminal target himself.
From Trump’s perspective, the rosiest scenario after Mueller’s firing would be: (a) appointment of a replacement for Mueller somewhat more tractable to the president’s wishes, or (b) a dispersal of Mueller’s staff and a transfer of their cases and investigations to regular U.S. Attorney’s Offices who would carry on the work. Either might slow things down, but the investigations would still be run by career prosecutors and agents who would not simply walk away.
Moreover, the part of the investigation that Trump now apparently most fears – the result of the search through his lawyer’s office – is already outside the special counsel’s bailiwick and being pursued by the U.S. Attorney’s Office for the Southern District of New York. Neither the New York prosecutors nor the FBI itself, which has a large measure of independent investigative authority, will stop so long as there are grounds to believe federal crimes may have been committed.
In short, while a DOJ firing spree might provide Mr. Trump a moment of satisfying catharsis, it will not resolve his legal problems.
At this critical juncture in his life, Donald Trump confronts a phenomenon with which he has never before had to reckon – the principled dedication of the men and women of the Department of Justice. The “deep state,” if you like. Though individually subject to all the flaws of any professional assemblage, their institutional allegiance is to no man and no party, but to the vigorous and impartial enforcement of the law. If Mr. Trump has, as he says, done nothing wrong, he has nothing to fear. But it’s now too late to prevent the Justice Department from following the evidence wherever it may lead.
By Frank Bowman
Last week, I had an enjoyable conversation with Politico journalist (and outstanding Mizzou Journalism School alum) Darren Samuelsohn. Darren was kind enough to quote me in an ensuing article about the likely result of Robert Mueller’s investigation. The piece is well worth a read, but the oddest bits to my mind are the quotes from several lawyers representing “clients swept up in the Russia probe.”
These lawyers are said to believe that Robert Mueller is likely to seek an indictment against Mr. Trump, despite the internal Department of Justice prohibition against doing so (that I’ve discussed at length here and here). At least one of them bases his view on what he perceives as the growing “level of confidence” of Mueller’s staff.
I had two contrary reactions to the lawyers’ remarks. On the one hand, they may be the candid intuitive assessments of a couple of people who have the advantage of dealing directly with the Mueller team over time. If so, they’re interesting, though probably not probative of very much. After all, one can be confident about the course of an investigation without having any intention to conclude it with an attempt to do something DOJ policy now bars. On the other hand, these attorneys could be trying to use the media to inflame the already-sensitive Mr. Trump into firing Rosenstein and then Mueller, thus removing pressure from the lawyers’ clients. But that’s way too Machiavellian.
P.S. — I used the word “targets” in the title of this post for the sake of brevity. In DOJ parlance, a “target” is someone against whom prosecutors have substantial evidence and are likely to charge; actually, we don’t know whether these clients are “targets,” “subjects” (persons of interest against whom less evidence has been developed) or merely witnesses.