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Firing Mueller and Rosenstein won’t save Trump’s closest allies

Trump’s inner circle would still be in federal crosshairs.

Special counsel Robert Mueller (L) arrives at the US Capitol for closed meeting with members of the Senate Judiciary Committee on June 21, 2017, in Washington, DC.
Alex Wong/Getty Images

President Trump may think he can end all his growing legal problems by firing Deputy Attorney General Rod Rosenstein and special counsel Robert Mueller. He can’t.

A pair of federal prosecutors in New York are now working on cases tied to two of Trump’s closest confidants. The FBI raided Trump’s personal lawyer Michael Cohen’s office on Monday for a case the prosecutor in Manhattan is handling. Last December, meanwhile, the US attorney in Brooklyn requested bank records tied to Jared Kushner, Trump’s son-in-law and senior adviser.

Those cases are separate from Mueller’s probe into Russian election meddling in 2016 and potential contact between the Trump campaign and Russian operatives.

That means that if Trump fires Rosenstein and Mueller, those other investigations won’t just go away. Trump would have to fire the other prosecutors and a host of other Justice Department officials.

A slew of other people have also signed off on parts of the investigations. Because Cohen is a lawyer, searching his office and hotel requires approval from not only the New York prosecutor but also officials from the criminal division of the Justice Department in Washington. A judge would also have to sign off on a warrant for the search. All those people could still push the investigation onward.

“Technically, either of these two US attorneys in New York could be fired as well,” Ric Simmons, a former federal prosecutor and a law professor at Ohio State University, told me. “But firing them in response to investigations into Trump’s lawyer and son-in-law would look almost as bad as firing the special counsel.”

That’s a lot of firing, and legal experts say any lawyers still left in those offices would probably continue the cases. Trump and his closest aides, in other words, would still be in federal crosshairs.

Mueller isn’t running the Cohen investigation

There are a variety of reasons Cohen appears to be in Justice Department crosshairs. The longtime Trump friend and fixer reportedly paid at least two women to not publicly discuss relationships they claim to have had with Trump. One of those women is Stormy Daniels, a porn actress who says she had a 2006 affair with Trump.

The president claimed last week that he didn’t know about the $130,000 Cohen paid Daniels shortly before the election to keep quiet about the alleged affair. The FBI reportedly is investigating whether that money broke campaign finance law, or if Cohen committed crimes getting the money from his bank.

If Cohen paid Daniels the money to help Trump win the election, it would be a campaign contribution well above the legal caps that he never reported.

Trump lashed out about the Cohen raid in a brief session with reporters Monday night.

“It’s an attack on our country in a true sense,” he said.

Trump also attacked Mueller’s investigation, dismissing the broader special counsel probe as a “witch hunt.” Mueller, though, wasn’t actually the one who ordered the raid.

Instead, it was carried out by FBI agents working for the US attorney for the Southern District of New York after Rosenstein sent the office the Cohen case. Rosenstein, another target of Trump’s ire, assigned the case after Mueller showed him evidence of potential crimes by Cohen.

That means that Mueller isn’t running the ongoing investigation into Cohen.

“I’m not even sure it is correct to say Mueller is ‘working with’ these offices,” Christopher Slobogin, a professor at Vanderbilt Law School, told me. “It may be more accurate to say he’s offloaded certain cases that are not directly related to the Russia probe to prosecutorial entities that are well-equipped to handle them.”

If Mueller isn’t involved with the case, Trump firing him wouldn’t eliminate the pressure on Cohen. Instead, the president would have to fire or pressure the prosecutor in charge.

The prosecutor in question, Geoffrey Berman, is a Trump appointee. But Berman recused himself from the decision to conduct the Cohen raid. That means Trump would probably have to fire Berman as well as other prosecutors in that office to make the probe stop.

The Kushner probe involves a third team of federal prosecutors. The investigation into Kushner relates to a $285 million bank loan Deutsche Bank gave to Kushner’s family business. The money helped the company refinance its debt and freed about $74 million in cash for it to spend.

The loan came about a month before the 2016 election, while Kushner was one of the leaders of the Trump campaign. That’s led to suspicions that the bank might have been trying to gain influence with Kushner, who continues to be one of Trump’s top advisers.

The investigation into whether that’s true — or if Kushner was involved in any wrongdoing — is being handled by the nearby US attorney for the Eastern District of New York in Brooklyn. Another Trump administration appointee, Richard Donoghue, runs that office.

So Trump could in theory get rid of Mueller as well as the prosecutors in New York leading the Kushner and Cohen probes. Trump would have to fire a handful of other Justice Department officials in the chain of command to make it happen, but he could probably do it. Still, legal experts don’t think even that would kill the cases.

“It seems highly doubtful, however, that either office would simply abandon its investigation on account of political or personal pressure,” Miriam Baer, a law professor at Brooklyn Law School and a former federal prosecutor, told me. Baer worked in the office that is investigating Cohen.

“The imperative to ‘do the right thing’ and see an investigation to its proper end has been woven into each office’s culture,” she added.

Trump is fixated on Mueller, but the former FBI chief isn’t the only one probing the president’s inner circle. And with the number of investigations continuing to grow, and to include more federal prosecutors, Trump can’t fire his way out of the legal woes facing his closest advisers.

Update: This story has been updated to clarify that Richard Donoghue was appointed by the Trump administration. Donoghue was selected by Trump’s Attorney General Jeff Sessions as interim head of the US Attorney’s office for the Eastern District of New York in Brooklyn.