White House

President Trump, I Feel Your Pain, but Please Don’t Fire Anyone

Attorney General Jeff Sessions speaks with Deputy Attorney General Rod Rosenstein at a summit about combating human trafficking in Washington, D.C. (Aaron P. Bernstein/Reuters)
As difficult as it is, you must resist your own instincts and let justice take its course.

Mr. President, I feel your pain. No one likes being under the cloud of an investigation, especially a high-profile one — and the one you are caught up in is as big as it gets. Your enemies treat the fact of the investigation itself as proof of your guilt, and the “fake news” media treats every twist, turn, and scrap of evidence that emerges (whether verified or not) as a figurative smoking gun. It’s unfair.

Even worse, as you see it, is that your friends are of little help. Your attorney general recused himself instead of protecting you from the unjustness of it all. His deputy appointed Robert Mueller special counsel and is supervising this circus. Your own FBI director, the man the Democrats were begging to be fired and whom you kept on initially, refused to say in public what he told you in private: that you were not the target of any investigation. So you fired him, and now he’s making bank attacking you on his book tour.

As if that weren’t bad enough, your own lawyers tell you not to tweet (the only way you know of fighting back) and encourage you not to talk to Mueller, as though you have something to hide. Your true friends — the ones you talk to on the phone at night when you’ve escaped all those well-meaning but overbearing staffers who treat you like a child rather than the president of the United States — have told you that you have the power to fire Mueller, Sessions, and his deputy, Rod Rosenstein. But those lawyers and advisers, the same kind of cautious people who told you to cool it on the campaign trail, keep throwing sand in the gears, giving you reason after reason why you can’t or shouldn’t just put an end to this fiasco.

Yes, it has taken longer than you would want, but by the time this ends you will realize that your AG’s DOJ has been quietly doing its job all along.

I get it. You feel that you did nothing wrong, and you’re as angry as anyone under federal investigation would be. But most people under federal investigation don’t have the constitutional authority to do something about it, as you do. And in deciding whether to use that power, you’re tempted to trust your instincts. After all, they’ve been better than the instincts of your advisers since Day One; they got you to the White House when all your doubters said you were toast. Firing everyone — or some people, strategically — makes some sense, doesn’t it? Your supporters will understand; they’re as sick of the investigation as you are. And there is no arguing that a firing or two would anger all the right people.

So why not?

I won’t bore you with constitutional theories, discussion of the “unitary Executive,” or other legal flim-flam. You’ve hired enough lawyers to know that you can find someone to argue anything. Nor will I discuss political ramifications — you were elected president and I wasn’t, so I figure you must know best on that front. But here is what you need to know:

Attorney General Sessions Is Your Friend and Ally

I know, I know, you are still miffed about the recusal — let it go, it had to happen. While you’ve been focused on other things, Sessions has been doing an excellent job running the DOJ. He has accomplished much of what you campaigned on. With respect to your situation, think about the Andrew McCabe case. Who does that inspector general who wrote that damning McCabe report work for? Who gave the IG the latitude and resources to run that investigation, to find the emails between FBI agents showing their bias? Who appointed a U.S. attorney outside of D.C. so there would be a grand jury available — and did so months ago, leaving your enemies unaware of the serious problems that were coming? Jefferson Beauregard Sessions, that’s who. Moreover, you are days away from the release of a second, possibly more explosive IG report, one that addresses former FBI director Comey, former AG Loretta Lynch, and other senior Obama-era FBI and DOJ officials. No, Sessions doesn’t tweet. No, he doesn’t leak. Yes, it has taken longer than you would want, but by the time this ends you will realize that your AG’s DOJ has been quietly doing its job all along.

It’s Not about You

As Deputy Attorney General Rosenstein apparently told you, you are not a target of either the Russia probe or the Cohen investigation. Your lawyers have warned you that such assurances don’t mean you have nothing to worry about, and they are right. Things could change. But Rosenstein’s word is not nothing, either. Mueller does not feel he has enough evidence to charge you now — after speaking with the witnesses who are cooperating, interviewing your entire staff, and reviewing millions of documents. So far, the crimes alleged have been committed before your presidential run or by third-tier hangers on you couldn’t pick out of a lineup. Sure, Manafort or Cohen could “cooperate.” But firing people doesn’t change that incentive, and their cooperation only matters if they have something damaging to say. Presuming they don’t, let them say it, if it comes to that. There is one way, however, that you can make this about you: firing those investigating you.

This Doesn’t End with Firings

Finally, Mr. President, you must understand that this is not a real-estate battle in New York, in which litigation is resolved with a business arrangement or your superior resources can bleed an opponent. The Justice Department will still exist, and Congress will extract from a new AG or deputy AG a promise to finish the investigation Mueller started. Congressional committees could be in Democratic hands after November. As unfair as you feel it all is, none of it will go away if you fire people. In fact, even after you are cleared, it won’t go away; some of your enemies are that obsessed. I have told many clients, “I know you feel wronged and I don’t know how this ends, but I can tell you how it doesn’t: with a letter of apology.” That’s harsh, but it is reality. It is the price of playing in the big leagues, of winning at the rarified level that you won. So remind yourself that the only thing you could do to get rid of this noise completely would be to go back in time and lose to Hillary Clinton. She’d trade a bruising investigation for the presidency in a heartbeat right now. Take pride in having the deal she will never have, as perverse as it seems. Losers don’t attract this much legal attention.

Mr. President, I am sympathetic to your plight. I think I understand what your instincts are telling you to do. But, as frustrating as it may be, you must resist those instincts, let the Mueller investigation finish, leave Sessions and Rosenstein in place, and gratify yourself by dreaming of the tweets you’ll send when this entire episode is finished and you’re vindicated. I’m sure there will be some doozies.

Robert N. Driscoll — — Robert N. Driscoll is the managing partner of McGlinchey Stafford’s Washington, D.C. office and the co-chair of its government-investigations practice. He previously served as a deputy assistant attorney general in the U.S. Department of Justice's Civil Rights Division.

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