If acting attorney general Matthew Whitaker fires Robert Mueller, it wouldn’t just trigger an immediate political crisis — it would represent one of the most bone-headed, counterproductive political moves in recent history. Why? Let me count the ways.
First — and critically — there exist no legal grounds for firing Mueller. The relevant regulation is clear:
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.
There have to be specific grounds for termination, and unless there is information about material misconduct that is as yet hidden from public view, firing Mueller now would violate the law.
Second, Whitaker is operating under dubious legal authority. In the battle over whether Trump can appoint an official who hasn’t been Senate-confirmed to act as attorney general, I’m with George Conway and Neal Katyal:
A principal officer [the attorney general is a “principal officer”] must be confirmed by the Senate. And that has a very significant consequence today.
It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.
At the very least, those on both sides of argument should acknowledge that the issue is far from settled, and a prudent, unconfirmed acting attorney general should be little more than a caretaker until a permanent replacement is confirmed. It would be reckless in the extreme to take dramatic, consequential action without the the clear legal right to do so.
Third, firing Mueller wouldn’t end investigations of Russian interference or obstruction of justice. A hyper-energized and outraged Democratic House would immediately take the baton from Mueller, and it would supplement its investigation with a separate investigation of the decision to fire the special counsel. The obstruction-of-justice investigation would metastasize.
And this leads us to the fourth reason why firing Mueller would be disastrous for Trump. It would invite impeachment. As much as the MAGA core relishes a fight with House Democrats, this is the least favorable grounds for political battle. A self-serving unlawful act will hardly rally the broader American public, and it stands to further dispirit right-leaning voters outside of Trump’s base.
The acting attorney general is no fool. I know him a little bit, and I know him to be a smart attorney who understands the political and constitutional expectations of a man in his position. I may eat my words, but I would be surprised indeed if the administration chose to fire Mueller without grounds and through an official acting with contested authority. Expect Mueller to stay in office and complete his work.