Trump allies in the conservative press have increasingly argued in recent days that the president should fire special counsel Robert Mueller — and on Monday night, a friend of Trump’s said on television that he’d heard (through aides) that the president was considering doing just that.
But Deputy Attorney General Rod Rosenstein, the administration official who actually has the authority to fire Mueller, threw cold water on that prospect in Senate testimony Tuesday morning.
Rosenstein explained how he interpreted Mueller’s authority, the regulations governing the special counsel’s office, and how he viewed his investigation so far. And all of his answers seemed intended as a signal that to fire Mueller without an extremely good reason, Trump would have to fire him too.
First, in response to questioning from Sen. Jeanne Shaheen (D-NH), Rosenstein confirmed that he believes he has authority over Mueller’s hiring and potential firing, and that Attorney General Jeff Sessions has forfeited that authority due to his recusal. Furthermore, Rosenstein said he thinks he’s the only person in the government who has that authority:
SHAHEEN: As I understand, Mr. Rosenstein, in this matter you are actually the one exercising hiring and firing authority, because Attorney General Sessions is recused. Is that correct?
ROSENSTEIN: Yes that’s correct. ... It’s certainly theoretically possible that the attorney general could fire him but that’s the only person who has authority to fire him. And in fact, the chain of command for the special counsel is only directly to the attorney general, or in this case the acting attorney general. So no one else in the department would have the authority to do that, and you have my assurance that we’re gonna faithfully follow that regulation.
Second, Rosenstein said that at this point, he had seen no evidence that would merit Mueller’s firing, and affirmed that he intended to give Mueller “the full independence that he needs to conduct that investigation appropriately”:
SHAHEEN: At this point, have you seen any evidence of good cause for firing of special counsel Mueller?
ROSENSTEIN: No, I have not.
SHAHEEN: And have you given the special counsel full independence from the Justice Department to conduct his investigation?
ROSENSTEIN: Yes, Senator. ... You have my assurance that we’re gonna faithfully follow that regulation and Director Mueller is going to have the full independence that he needs to conduct that investigation appropriately.
Finally, Sen. Susan Collins (R-ME) got right to it and asked the question on everyone’s mind — if Trump ordered Rosenstein to fire Mueller, what would he do?
COLLINS: Has the president ever discussed with you the appointment of the special counsel or discussed the special counsel in any way?
ROSENSTEIN: No, he has not.
COLLINS: And second, if President Trump ordered you to fire the special counsel, what would you do?
ROSENSTEIN: Senator, I’m not going to follow any orders unless I believe those are lawful and appropriate orders. Under the regulation, special counsel Mueller may be fired only for good cause. And I am required to put that cause in writing. And so that’s what I would do — if there were good cause, I would consider it. If there were not good cause, it wouldn’t matter to me what anybody says.
Rosenstein’s response here is important for a few reasons. In response to a question about a hypothetical presidential order, he says he’s “not going to follow any orders” he doesn’t believe to be “lawful and appropriate.” Then, crucially, he says that according to the special counsel regulations, Mueller “may be fired only for good cause,” and that he is “required to put that cause in writing.”
So, Rosenstein continues, his determination on whether to carry out an order to fire Mueller depends on his judgment about whether there is good cause for him to do so. “If there were not good cause, it wouldn’t matter to me what anybody says,” he testifies.
Essentially, Rosenstein is saying he would not approach a presidential order to fire Mueller in the same way that he approached the president’s request to come up with a pretext for firing FBI Director James Comey. (After a meeting where Trump expressed his desire to fire Comey, Rosenstein wrote a memo criticizing Comey’s conduct in the Clinton email case and recommending new FBI leadership.)
Rosenstein’s conduct there called his impartiality into question. But now he’s laying out an argument that the special counsel is different from the FBI director. Rosenstein appears to be saying that unlike the FBI director, who serves at the pleasure of the president, there is a far higher bar to fire the special counsel — there must be good cause, and he wouldn’t do it without good cause.
Of course, if Rosenstein refused to carry out an order from President Trump to fire Mueller, he himself could be fired by the president, so Trump could appoint someone who would carry out that order — à la Richard Nixon’s Saturday Night Massacre. But Rosenstein’s testimony today signals that if Trump wants to get rid of Mueller, it would be ugly.