What happens if President Donald Trump fires Robert Mueller? Will that effectively end Mueller’s ever-expanding Russia probe? Or will the investigation persist with or without Mueller?
As my Vox colleague Zachary Fryer-Briggs noted this week, Trump’s attacks on Mueller are getting increasingly personal. Until recently, Trump had (for the most part) resisted mentioning Mueller by name, criticizing the investigation instead. But now he’s tweeting direct insults of Mueller, calling him “conflicted” and “crazy” and insisting there’s “no collusion.”
There are also reports that Trump is seriously considering firing Mueller in order to curb his investigation. It appears he’s also considering firing Deputy Attorney General Rod Rosenstein (perhaps instead of Mueller) after Monday’s FBI raid on Trump’s personal attorney Michael Cohen.
If either of these scenarios plays out, it’s not clear what would happen to Mueller’s probe. To get a better sense of the possibilities, I reached out to nine legal experts and asked them directly.
Their full responses, lightly edited for clarity and style, are below.
Victoria Nourse, law professor, Georgetown University
The investigation will persist for several reasons. First, because there are pending indictments. If Mueller is fired, the deputy attorney general can transfer Manafort’s and any other pending cases to other lawyers within the Justice Department. The president could name his own special counsel, but that’s what President Nixon did when he fired Archibald Cox, and the result was a new special counsel who was equally independent, so that’s not a way out either.
Second, prosecutions can proceed outside the Justice Department in Washington by local US attorneys. The warrant obtained against Mr. Cohen, the president’s lawyer, is reason to believe new indictments will issue.
If I were the US attorney for New York (the head federal lawyer in New York appointed by Trump), and I had to approve the Cohen warrant and search, I would want solid proof of a felony. The legal standard for a warrant is not high, but no one would go after a lawyer unless there was pretty hard evidence of a crime. Any indictment against Cohen does not have to come from a special counsel; it can issue from the US attorney in New York.
Third, if Mueller is fired, Congress won’t sit by quietly. Republicans are already signing on to bills that would protect Mueller, or at least have a court weigh in to determine whether his dismissal was proper. Any case involving Mueller’s firing would have to consider the evidence Mueller unearthed.
Finally, if all else fails, state attorneys general, as we have seen in cases on the travel ban or emoluments or immigration, have wide latitude and authority to investigate and bring criminal charges.
Diane Marie Amann, law professor, University of Georgia
Would firing Mueller end the Mueller investigation? Yes and no.
Yes, because firing the investigation’s leader could chill full pursuit of the investigation’s most politically fraught aspects.
No, because the existing web of prosecutorial initiatives would not simply vanish. Federal guilty pleas would remain in place, and federal proceedings arising out of indictments would continue. Any chilling of federal efforts, moreover, would not block state investigations into allegations of fraud, money laundering, and other white-collar crimes.
Jens David Ohlin, law professor, Cornell University
Trump can’t fire Mueller directly — he needs Rosenstein to do it for him. So getting rid of Mueller would involve replacing either Rosenstein or Attorney General Jeff Sessions. At that point, the fate of the investigation would depend entirely on who is in charge of supervising the investigation and whether they want it to continue or not.
If a new attorney general is determined to shut down the investigation and also shut down all related prosecutions by regular DOJ prosecutors, then the investigation would be effectively dead. On the other hand, a new attorney general might stand up to Trump by replacing Mueller with an equally respectable special prosecutor determined to continue the investigation and find the truth.
That’s what happened to Nixon after the Saturday Night Massacre. But Trump might avoid the same “mistake” by appointing a new attorney general who has already promised to him that he’ll shut down the Russia investigation completely. At that point, the only hope would be a congressional investigation launched by Democrats after the midterm elections, or state prosecutions in New York and other local jurisdictions (which aren’t controlled by the Justice Department).
Lisa Griffin, law professor, Duke University
Firing Mueller would not end the investigation into the president and his associates. First of all, there are 19 indictments pending in court. Though it is unlikely that the Russian nationals who have been charged will be brought to justice, the Paul Manafort trial is coming up, and Mike Flynn, George Papadopoulos, Rick Gates, and Richard Pinedo have all entered guilty pleas and await sentencing.
These are filed cases in real court — not fake news. The Justice Department would presumably continue to staff the cases and see them through. That’s also true of the open investigation. A new special counsel, existing members of Mueller’s team, and/or prosecutors in US attorneys’ offices could run out the leads that Mueller has already developed.
There is even some indication that state-level prosecutors in New York — insulated from the president’s potential actions and beyond the reach of his pardon power as well — are also ready to pursue parallel state crimes pertaining to financial improprieties.
Jed Shugerman, law professor, Fordham University
Even if Trump fires Mueller, there are many reasons the investigation will continue. First, Mueller and Rosenstein referred the Michael Cohen case to the US attorney for the Southern District of New York, a separate set of permanent prosecutors.
Second, Mueller was reportedly coordinating with New York Attorney General Eric Schneiderman. Trump can’t fire state prosecutors or pardon state crimes, and state criminal law covers many of the underlying alleged crimes in these investigations.
Third, even if Trump fires Mueller, Rosenstein could appoint a new special counsel. And if he fires both, the new acting attorney general would be under tremendous pressure to appoint a new special counsel. Trump would have to fire many people to be able to install his own lackey to do his bidding.
Fourth, firing Mueller (and Rosenstein) doesn’t mean that Mueller’s team of prosecutors is automatically dissolved. After Nixon ordered the firing of special prosecutor Archibald Cox in the Saturday Night Massacre, Cox’s team preserved their records and continued their work under a new special prosecutor, Leon Jaworski.
And fifth, it would be likely that the Senate Intelligence Committee, the only committee that has taken its duty seriously so far, would step up its own investigation, potentially hiring Mueller, as long as one or two Republican senators voted with the Democrats to proceed.
And even if this committee failed to uphold its duty now, it seems likely that if the Democrats retake one or both houses of Congress, congressional committees in January 2019 would change hands and take on their constitutional duty to check, balance, and investigate.
Renato Mariotti, former federal prosecutor, 2007 to 2016
There are currently multiple open investigations at the Justice Department. The FBI has collected evidence and has written reports summarizing interviews with witnesses. There are pending indictments of a number of individuals.
If Mueller is fired, those investigations don’t close themselves. The evidence and reports are not destroyed. The indictments are not dismissed. Unless Trump appoints someone who takes it upon himself or herself to close the open investigations and dismiss the court cases, they will continue to proceed.
Steven Duke, law professor, Yale University
Assuming that Mueller is fired, questions would remain — whether the office of special prosecutor still exists and how and by whom Mueller can be replaced. Even if Mueller’s firing also abolished his office, his investigation would continue and likely expand in the hands of the FBI and other agencies, congressional committees, members of the Justice Department (whether specifically authorized or not), state investigators and prosecutors, and various vigilantes. Stirred hornets will attack in all directions.
Miriam Baer, law professor, Brooklyn Law School
Even if Trump is able to remove Mueller, he can’t just make the entire Mueller investigation go away. First, there would be the matter of the cases that have already been indicted and are already pending. Even if Mueller’s entire team were dismissed, the Department of Justice would still have to decide what to do with these prosecutions. The political costs of abandoning these cases (through a pardon or other means) would be enormous.
Second, the United States Attorney’s Offices for the Southern and Eastern Districts of New York are already conducting their own investigations. Within each of these offices reside some of the most skilled prosecutors in the country. We know that Michael Cohen appears to be the subject of the Southern District’s investigation, and the Kushner Companies are reportedly the focus of the Eastern District’s inquiry.
Presumably, some of the factual material each district has uncovered in the course of its respective investigations partially overlaps that of the special counsel. Accordingly, one or both offices would almost certainly continue their investigations, unless and until President Trump took steps to block their work. And here, again, the political costs of extinguishing these investigations would be massive as well.
Finally, even if the president were to somehow extinguish all federal investigations of anyone he ever worked with or knew, he would remain powerless to interfere in any investigations by various state or local prosecutors of any violations of state law. State and federal criminal law differ in important ways, and state attorneys would need time to get up to speed. Nonetheless, those state prosecutors would be extremely incentivized to pick up where federal investigators left off.
Ric Simmons, law professor, Ohio State University
This is hard to say. A lot will depend on the political repercussions of Mueller’s firing. Legally, the Department of Justice can continue the investigation, but if the president fires Mueller, it is very likely he will order the Department of Justice to shut down the investigation.
It is not clear who will be running the Department of Justice at that point; Sessions has recused himself from this investigation, and Rosenstein will almost certainly have to be fired and replaced before the president can fire Mueller. But whoever the president finds to take Rosenstein’s place will be willing to carry out the order to shut down the investigation.
There may be small parts of Mueller’s investigation that can be taken up by state attorneys general, however, but without knowing the details of what Mueller is looking for, it is hard to know how much, if any, these state-level prosecutors will have jurisdiction over.