President Trump ordered the firing of Robert Mueller, the special counsel investigating the Russia scandal, last June. But top White House lawyer Don McGahn said he’d quit rather than carry it out — and Trump backed down, according to a blockbuster story by the New York Times’s Michael Schmidt and Maggie Haberman.
Though it was known at the time that the president was thinking of firing Mueller, this is the first report that Trump actually gave the order — and that, remarkably, one of his own staffers defied him and prevented his wishes from being carried out.
The president denied the story Friday, calling it “fake news” and “typical New York Times.” But other outlets, like the Washington Post and CNN, confirmed it.
The news provides us yet another example of President Trump’s attempts to interfere with ongoing investigations — a pattern of behavior that has put him under scrutiny for potential obstruction of justice.
But the firing order also represents the road not taken for the Trump presidency. If McGahn had carried it out — or if Trump had refused to back down until he found someone who would — an enormous political controversy reminiscent of President Richard Nixon’s “Saturday Night Massacre” likely would have ensued, and could well have swallowed up the rest of Trump’s first year in office.
That’s what McGahn apparently feared: Schmidt and Haberman write that he told other top White House officials that the firing would “have a catastrophic effect on Mr. Trump’s presidency.” And eventually, his warnings prevailed.
About seven months have passed since then, during which Mueller and his team have remained in place. They’ve indicted two Trump associates, Paul Manafort and Rick Gates, for alleged crimes unrelated to Trump or the campaign. And they’ve turned two others, George Papadopoulos and Michael Flynn, into cooperating witnesses via plea deals.
Now Mueller’s team is in the midst of negotiations for a sit-down interview with Trump — an interview they reportedly intend to focus on the topic of whether the president obstructed justice in the matter of the Russia probe. Trump will be at risk of perjuring himself should he lie.
But this new Times story isn’t news to Mueller himself — per Schmidt and Haberman, the special counsel’s investigators learned about it some time ago, making clear yet again that they have substantially more information than the public knows about so far.
Trump’s justification for firing Mueller was ludicrous
Before he was appointed special counsel, Mueller was widely respected by members of both parties. Indeed, he was so well respected that Trump considered him as a candidate to replace James Comey as FBI director, and even invited him in for an interview.
But by June, per Schmidt and Haberman, Trump had come up with some reasons Mueller should be fired. They’re absurd:
First, he claimed that a dispute years ago over fees at Trump National Golf Club in Sterling, Va., had prompted Mr. Mueller, the F.B.I. director at the time, to resign his membership. The president also said Mr. Mueller could not be impartial because he had most recently worked for the law firm that previously represented the president’s son-in-law, Jared Kushner. Finally, the president said, Mr. Mueller had been interviewed to return as the F.B.I. director the day before he was appointed special counsel in May.
That’s right — Trump seems to have argued that Mueller’s investigation couldn’t be impartial because Mueller had a dispute with his golf course several years back. In fact, it’s not clear if it could even qualify as a “dispute” — per the Washington Post, Mueller merely “sent a letter requesting a dues refund in accordance with normal club practice and never heard back.”
The other two reasons — that Mueller had worked for a firm that had represented Kushner, and that he was a candidate to replace Comey at the FBI — are also strange and tenuous. Both would, if anything, be reason for Trump’s critics to question Mueller’s impartiality, since he had ties to Trump and his son-in-law.
McGahn’s refusal to carry out the instruction is remarkable — and so is the fact that he kept his job afterward
So according to the Times, Trump then gave the order to fire Mueller, which was communicated to White House counsel Don McGahn.
The specifics of how that happened aren’t entirely clear, because Trump can’t fire Mueller directly, and neither can McGahn. The person who does have that authority is Deputy Attorney General Rod Rosenstein. So perhaps the “order” in question here was an instruction that McGahn was told to communicate to Rosenstein.
Whatever the case, McGahn got the instruction — and then didn’t follow it.
Instead, he threatened to resign from the White House — although he “did not deliver his resignation threat directly to Trump,” according to the Washington Post’s Rosalind Helderman and Josh Dawsey.
Up to this point, things appeared to be headed toward a repetition of Nixon’s Saturday Night Massacre of October 20, 1973. Then, Nixon ordered his attorney general and deputy attorney general to fire the special prosecutor investigating Watergate, but they each resigned rather than carry out his order. (The next Justice official in line did agree to carry out the firing. But after a political firestorm, he appointed a new special prosecutor.)
But McGahn didn’t have to resign. Instead, it seems, he refused to carry out a presidential instruction — and Trump just gave in and allowed him to stay in the job anyway.
It’s bizarre that any president would let a staffer stay on despite insubordination of this magnitude. But it fits with a larger pattern of Trump administration officials trying to ignore or downplay the president’s more off-the-wall or legally problematic tweets or statements. (Taking him seriously but not literally, you might call it.)
McGahn was probably also helped by the fact that many of Trump’s other top officials at the time, including Chief of Staff Reince Priebus and chief strategist Steve Bannon, also argued that firing Mueller would be an utter disaster and desperately tried to dissuade Trump from doing it, per Helderman and Dawsey.
in any case, Schmidt and Haberman also report that Trump’s team discussed another option — the possibility of firing Rosenstein. That would have put Rachel Brand, the No. 3 Justice Department official, in charge of Mueller. But they didn’t end up doing that either.
The bigger picture: this is one of several failed attempts by Trump to get more control over the Russia investigation
While dramatic in and of itself, the news is also important because it’s part of a pattern in which Trump has repeatedly tried, and failed, to get more control over law enforcement officials generally and the Russia investigation specifically.
- On January 27, Trump invited FBI Director James Comey over for dinner and, according to Comey, asked him for his “loyalty.” Trump subsequently asked Comey to let the Russia-related investigation into Michael Flynn go, and asked him how he could “lift the cloud” of the Russia investigation, per Comey. (Comey says he took no action in response to any of this.)
- In early March, when Attorney General Jeff Sessions was under pressure to recuse himself from overseeing the Russia investigation, Trump sent word that he didn’t want Sessions to do so. Per the Times, he designated McGahn to convey the message to the attorney general. (However, Sessions ignored the entreaty and recused himself anyway.)
- On May 9, Trump fired Comey. Though Sessions and Rosenstein claimed the reason was that Comey was too tough on Hillary Clinton in the email investigation, Trump then said on television that their advice was irrelevant and that the Russia investigation, which he called a “made-up story,” was a factor in his decision. (However, due to the ensuing storm of leaks and general outrage, Rosenstein then appointed Mueller as special counsel.)
- Throughout the summer, Trump publicly mocked and berated Sessions, urging him to quit. One rationale for this was reportedly so Trump could then appoint a new un-recused attorney general whom he trusted to oversee the Russia probe. (This didn’t work.)
- In December, apparently in response to Trump’s repeated public demands, Sessions reportedly pressured the new FBI director, Christopher Wray, to fire his deputy, Andrew McCabe. (Wray has refused to do so.)
Trump’s apparent order to fire Mueller would fit in the middle here — in June. And the fact that Trump was thinking about doing this was no secret at the time. On June 12, Christopher Ruddy, a friend of Trump’s, appeared on PBS NewsHour said the president was considering “perhaps terminating the special counsel.” (Ruddy added that he thought that would be a mistake.)
Chris Ruddy to @JudyWoodruff: President Trump is considering firing special counsel Robert Mueller, who he considered for another position. pic.twitter.com/X4IIHlh8at
— PBS NewsHour (@NewsHour) June 12, 2017
The question: is all this enough for an obstruction of justice case — and if so, what comes next?
For months, Mueller has been investigating the question of whether Trump has obstructed justice, as part of his larger investigation into Russian interference in the 2016 election. His team has interviewed a plethora of current and former White House aides and is gearing up to potentially interview the president himself. And on Wednesday, sources told Bloomberg News’s Chris Strohm and Shannon Pettypiece that Mueller “appears to be wrapping up” the obstruction investigation.
At some point, Mueller and his boss Rosenstein will face the difficult task of determining whether they think Trump did obstruct justice — and if so, what to do about it. Trump’s failed attempt to fire Mueller himself is another piece of evidence that will have to be examined here.
And though it’s clear that Trump’s conduct is wildly inappropriate according to decades of recent norms about how the president should interact with the Justice Department, legal experts are divided on just how damning the known evidence against Trump on obstruction of justice seems to be.
Then if Mueller and Rosenstein conclude there is a case, they would have to decide whether to take the legally dubious and controversial route of indicting a sitting president (which the Justice Department has long said cannot be done), or whether to report their findings to Congress with an eye toward potential impeachment.
An impeachment focus would skirt the legal difficulties of relying on the federal obstruction of justice statute because impeachment isn’t a legal process at all — it’s a political one.
Yet in other ways, this would make Mueller’s task harder. The Republican-controlled Congress has an obvious partisan incentive to give Trump the benefit of the doubt on any accusation that’s less than rock-solid — and probably even some that are rock-solid.
Finally, but not to be forgotten, lurking at the heart of all this is the question of whether Trump and his associates did in fact play a part in Russian interference with the 2016 campaign. If that were to be proven, it would help make the obstruction case stronger and the whole investigation tougher to dismiss politically.
Whether that is the case remains unclear. And if Robert Mueller knows, he isn’t letting on just yet.