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Credit to Author: Garrett M. Graff| Date: Wed, 31 Jan 2018 20:41:03 +0000<\/strong><\/p>\n Bob Mueller is <\/span>famously nonchalant amid life\u2019s toughest moments. Much of that public calm stems from the fact that he\u2019s a Magnificent Bastard and, specifically, the lessons of December 11, 1968. That day, then Second Lieutenant Mueller\u2019s squad\u2014part of the Second Platoon, Hotel Company, Second Battalion, Fourth Marine Regiment, the so-called \u201cMagnificent Bastards\u201d\u2014was on patrol in Quang Tri Province when they came under heavy fire from as many as 200 North Vietnamese troops. They almost immediately began to take casualties.<\/p>\n Mueller organized a defensive perimeter and moved among his Marines, encouraging them to return fire; they fought for hours. At one point, Mueller led a fire team into enemy territory to retrieve a mortally wounded comrade. The rest of his unit survived, and he received a Bronze Star, with Valor, for his actions and leadership that day.<\/p>\n That day wasn\u2019t Bob Mueller\u2019s first time in combat, and it wouldn\u2019t be his last. It wouldn\u2019t even necessarily be his most consequential: Four months later, he was shot through the leg by an AK-47.<\/p>\n The time in Vietnam, though, gave him a hard-won perspective on the bureaucratic fights where he\u2019d spend most of the rest of his career. He considers himself lucky to have survived Vietnam\u2014and his life of public service ever since stems, in part, from that gratitude. His college classmate David Hackett never got the chance to come home, and he speaks regularly of Hackett\u2019s sacrifice.<\/p>\n Even in Mueller\u2019s toughest moments stateside\u2014the months after 9\/11, when he was FBI director, and the 2004 hospital showdown that brought him and Jim Comey eyeball to eyeball with the Bush administration\u2014he\u2019s evinced a certain calm amid Washington\u2019s slings and arrows. As FBI director, even facing the daily fears of terrorism, spy plots, and cyberattacks, he used to joke, \u201cI\u2019m getting a lot more sleep now than I ever did in Vietnam.\u201d<\/p>\n Still, you have to wonder how well Mueller is sleeping these days. It\u2019s hard to imagine that he has faced a more challenging\u2014or more potentially consequential\u2014week than this past one, which has seen a steady series of attacks from the Trump administration and congressional Republicans on both his own investigation and the two institutions that he devoted almost his entire life to serving, the FBI and the Justice Department.<\/p>\n So let\u2019s do a quick review of recent developments in Washington and then consider a question that has yet to get a thorough airing in the coverage of the Russia investigation and its attendant sideshows: What would happen to the investigation if Mueller were to be fired?<\/p>\n First, the recent <\/span>barrage of developments. It\u2019s hard to keep the hits straight; they\u2019ve come so quickly and we\u2019ve grown so desensitized to major, Earth-moving news stories coming and going ephemerally in the Trump Age. Just in the past 10 days, we\u2019ve seen news that Mueller\u2019s team has interviewed the sitting attorney general, Jeff Sessions, as well as the former FBI director Jim Comey, and begun to talk to the White House about interviewing the president himself\u2014all signs that Mueller\u2019s efforts are reaching a critical moment.<\/p>\n Then there was the news that last summer, in June, President Trump ordered White House counsel Don McGahn to fire Mueller as special counsel<\/a>\u2014a power that doesn\u2019t technically belong to McGahn\u2014and that McGahn resisted, saying that he\u2019d resign rather than begin to implement the order, a powerful sign that the president\u2019s own lawyer saw a corrupt intent behind the president\u2019s direction.<\/p>\n On Capitol Hill, we\u2019ve borne witness to a fantastical pas de deux between congressmembers Devin Nunes and Adam Schiff, the top Republican and top Democrat respectively on the House Intelligence Committee, as Nunes\u2014who last year breathlessly reported that he uncovered evidence of \u201cdeep state\u201d malfeasance against President Trump and rushed to the White House to brief the president, only to later admit that his evidence itself came from the White House, an incident that so compromised his own integrity that he was forced to the sidelines of the Russia investigation\u2014now claims to have singlehandedly uncovered a vast government conspiracy underway at the FBI and the Justice Department.<\/p>\n And he\u2019s managed to explain the entire plot in a four-page memo that the House is moving, in perhaps a literally never-before-used protocol<\/a>, to force to be declassified. The Trump appointees inside the Justice Department say doing so would compromise critical classified information and would be \u201cextraordinarily reckless,\u201d but the White House, which is currently reviewing the memo, doesn\u2019t appear to agree. (As he was leaving the House chamber after his State of the Union speech Tuesday night, Trump was overheard saying<\/a> that he believed the memo should be released \u201c100 percent.\u201d)<\/p>\n Schiff, meanwhile, has a competing memo that purportedly disputes almost all aspects of Nunes\u2019 memo, but for equally complicated reasons his won\u2019t be released, meaning that Nunes\u2019 claims will, when they\u2019re made public, be all but undisputed publicly. All of the controversy appears to have something to do with the FBI and the Justice Department\u2019s investigation into the Trump campaign\u2014and perhaps the presidency\u2014and, in response, Nunes\u2019s committee majority has informed the minority Democrats that it has now launched an amorphous and ill-defined investigation into both the department and the bureau.<\/p>\n Then there was the last-minute announcement from the White House, on Monday night, that they would not enforce a new round of sanctions against Russia\u2014sanctions required by Congress<\/a>, which overwhelmingly passed the legislation\u2014and also whiffed on creating a list of targeted Russia business leaders, cribbing<\/a> a list of the country\u2019s richest from Forbes<\/em> magazine instead.<\/p>\n Andrew McCabe, the FBI’s deputy director, abruptly announced his departure from the bureau on Monday.<\/p>\n And don\u2019t forget the week in the life of Andy McCabe.<\/p>\n First came news that FBI director Chris Wray threatened to resign<\/a> if pressured to fire deputy director McCabe, a longtime Twitter target<\/a> of Trump, and then the bombshell that McCabe\u2014a longtime veteran of the FBI and a career nonpartisan law-enforcement agent\u2014was asked directly by President Trump who he voted for<\/a> (McCabe\u2019s answer: He didn\u2019t vote), and that Trump, separately, also berated McCabe in a telephone call and gratuitously insulted his wife<\/a>. (McCabe\u2019s answer: \u201cOK, sir.\u201d)<\/p>\n McCabe announced his retirement early Monday, perhaps because the Justice Department inspector general is questioning<\/a> whether he tried to abide by the Justice Department\u2019s own guidelines on investigating politically sensitive matters close to an election by slowing the examination of Anthony Weiner\u2019s laptop in the weeks before the 2016 presidential election.<\/p>\n If you\u2019re confused about how the GOP could be criticizing McCabe for appearing to aid<\/em> Hillary Clinton\u2019s campaign when deputy attorney general Rod Rosenstein\u2019s memo accusing Jim Comey and the FBI of treating her unfairly<\/em> was the purported basis for his firing by Trump last May, well, you\u2019re not alone\u2014this investigation increasingly appears to be taking America through the looking glass.<\/p>\n The Nunes memo is particularly significant because it appears to target Rosenstein<\/a>, a Trump appointee who now controls the strings of Mueller\u2019s investigation at the Justice Department.<\/p>\n Following Jeff Sessions\u2019 recusal from Russia-related matters, Rosenstein\u2014a career prosecutor who was originally appointed as a US Attorney by George W. Bush\u2014appointed Mueller as a \u201cspecial counsel\u201d using special Justice Department regulations, known as 28 C.F.R. \u00a7 600.4-600.10<\/a>, that were implemented after the Independent Counsel Act expired following Bill Clinton\u2019s presidency. The Independent Counsel Act, the law that spawned Ken Starr, was seen as too independent and unaccountable.<\/p>\n The special counsel rules bring the investigators under closer supervision by the Justice Department\u2014but still narrowly limit the ways and criteria by which a special counsel can be removed. Rosenstein could only remove Mueller for \u201cmisconduct, dereliction of duty, incapacity, conflict of interest,\u201d or \u201cother good cause,\u201d and there\u2019s no sign that Rosenstein believes any of that is likely; last month he specifically defended<\/a> Mueller\u2019s investigation thus far and said he believes Mueller \u201cis running his office appropriately.\u201d<\/p>\n Rosenstein\u2014who signed the increasingly infamous memo last spring arguing that Comey had compromised the FBI\u2019s reputation with the Clinton email investigation and had to be fired so that the bureau could be rebuilt\u2014understands that this document appeared to undermine his own integrity, and that his reputation is now inexorably linked with defending Mueller\u2019s probe and independence.<\/p>\n Given the Republican, Trump-appointed Rosenstein\u2019s reluctance to act to remove Mueller\u2014himself a registered Republican who served all three of the most recent GOP presidents for almost every day of the 20 years of their administrations\u2014there are increasing signs that the Trump administration might be moving toward smearing Rosenstein\u2019s reputation or ousting him directly.<\/p>\n How exactly they can accomplish that\u2014and just which Justice Department official is willing to add his or her name to the history books to stand alongside Robert Bork, the executioner in Nixon\u2019s \u201cSaturday Night Massacre\u201d\u2014is unclear.<\/p>\n Likewise, it\u2019s not entirely clear how much firing Mueller would affect the probe, which has been underway for more than a year now\u2014it was launched in the midst of the 2016 presidential campaign\u2014and has already resulted in guilty pleas or charges against the president\u2019s former campaign chairman, the White House national security adviser, and two other aides.<\/p>\n But given the turmoil and tumult in Washington, it doesn\u2019t mean that Trump won\u2019t try.<\/p>\n So what would <\/span>firing Mueller look like?<\/p>\n By all accounts, Donald Trump is within his presidential prerogatives to order the firing of Mueller\u2014but it wouldn\u2019t necessarily be easy. If Rosenstein refuses a direct order from Trump to fire Mueller and is fired or resigns instead, the task would fall to Rachel Brand, the No. 3 official at Justice, who would face the same dilemma\u2014fire Mueller or leave office. And on down the line until Trump finds someone willing to do his bidding.<\/p>\n Certainly every person in that Justice Department hierarchy has already spent time thinking through what would happen if he or she got the phone call ordering a firing. They have all certainly played out various scenarios, and perhaps even discussed with staffs about where their red lines would be and what action they would take in such a historic moment.<\/p>\n The reports last week that White House counsel Donald McGahn threatened to resign rather than implement Trump\u2019s order to fire Mueller make it inexorably more difficult for anyone to give the order now. The news that McGahn told the President that he\u2019d resign gives any Justice Department official ordered to fire Mueller by the White House the knowledge that none other than the White House\u2019s top lawyer suspects there might be corrupt intent behind such a directive\u2014meaning that it is tantamount to obstruction of justice and, by definition, unlawful. Such knowledge makes it much harder to be willing to be the one who signs the letter firing the special counsel, who despite all the partisan political muddying of the waters is a legend inside \u201cMain Justice\u201d and seen by effectively everyone outside of the GOP fever swamp as an apolitical straight arrow.<\/p>\n And the Justice Department has a much deeper bench now than it did in the Nixon days.<\/p>\n Most people don\u2019t realize that during Watergate, in the midst of the Saturday Night Massacre, Robert Bork\u2014as solicitor general, the No. 3 official, who became acting attorney general after the resignation of attorney general Elliot Richardson and deputy attorney general William Ruckelshaus\u2014was actually pressured by Richardson and Ruckelshaus to do Nixon\u2019s bidding and fire special prosecutor Archibald Cox. At the time, the Justice Department\u2019s line of succession was only three deep: If Bork resigned too, it wasn\u2019t clear who would lead the department, and Richardson feared outright chaos.<\/p>\n Today, though, there are no such concerns. The line of succession is effectively infinite\u2014though it\u2019s complicated by how few Senate-confirmed officials are in place at the department right now. Thus each official, in turn, could decide solely based on his or her conscience and how he or she wants to be viewed by history.<\/p>\n Weighing on whomever was forced to make the decision to fire Mueller is a pile of evidence that didn\u2019t exist last summer when McGahn\u2019s dramatic showdown played out without the public\u2019s knowledge: Mueller\u2019s investigation, through the guilty pleas of George Papadopoulos and Michael Flynn, has established clear evidence of contacts between Russian officials and Trump campaign aides\u2014thereby establishing that his case is not, as the president has labeled it, a capitalized \u201cWitch Hunt.\u201d<\/p>\n President Trump may have a difficult time finding a Justice Department official willing to fire Mueller.<\/p>\n Trump could also try two other, more direct paths to forestall the investigation, each of which would be tremendously controversial in its own way: He could invoke his own Article II powers as president to attempt to fire Mueller directly\u2014which would almost certainly get disputed in court, since the special counsel regulations grant the firing power exclusively to the attorney general or acting attorney general. He could also attempt to pardon all the targets of Mueller\u2019s investigation. Such pardons, though, wouldn\u2019t stop state or local prosecutors from pursuing their own charges\u2014and, indeed, Mueller\u2019s team appears to be leaving bread crumbs<\/a> in their case work for just such investigations\u2014and it wouldn\u2019t stop Mueller from writing a report that could be handed over to the Justice Department to be turned over to Congress for public debate and possible impeachment proceedings.<\/p>\n Either move\u2014a direct firing or public pardons\u2014would likely also ignite a political firestorm in Washington, though there\u2019s little evidence that a red line exists among Republicans on Capitol Hill that they won\u2019t let Trump barge right past. However, with a narrow one-vote majority in the Senate and midterm elections approaching quickly, Republicans can\u2019t afford to lose much ground without paralyzing their Capitol Hill agenda for this year and risking their congressional majorities in November.<\/p>\n Trump\u2019s best path to ridding himself of the meddlesome FBI director and slowly reining in the investigation might come instead from removing Rosenstein or Sessions and appointing a new deputy attorney general or attorney general.<\/p>\n Rosenstein is overseeing the case\u2014serving as the acting attorney general in the Russia matter\u2014because Jeff Sessions himself is a a potential target of the investigation, having met secretly with Russian ambassador Sergey Kislyak during the campaign and then conveniently forgetting about those encounters during his confirmation process. If Sessions resigns, the next attorney general\u2014presuming he or she is also not compromised by the Russia investigation\u2014would be able to take control of the investigation back from Rosenstein and either fire Mueller or box in his investigation. Similarly, a replacement for Rosenstein might be more compliant to Trump\u2019s wishes too. It is not widely understood that Mueller\u2019s team has to keep Rosenstein, as acting attorney general, in the loop and ask permission for each additional investigative avenue it wants to pursue.<\/p>\n Regardless, though, the removal of Mueller wouldn\u2019t necessarily stop the case in its tracks. Whoever was responsible for that firing could appoint another special counsel, for one thing; it was, in fact, the work of Archibald Cox\u2019s successor, Leon Jaworski, that led to some of the most significant court findings in the Watergate scandal.<\/p>\n Even if there was no successor forthcoming, the case and investigation could and probably would continue on its own as a regular FBI inquiry.<\/p>\n Starting an investigation at the FBI is a formal process, requiring agents to demonstrate evidence of a criminal predicate to move to what\u2019s known as a \u201cfull field\u201d investigation, and, similarly, closing an investigation requires a formal decision to \u201cdecline\u201d charges. The \u201cMueller probe\u201d isn\u2019t actually a single case; at this point there are multiple independent investigations underway, including into Paul Manafort and Rick Gates\u2019 former business dealings, into the campaign\u2019s separate dealings with Russian officials, and into possible obstruction of justice around Jim Comey\u2019s firing.<\/p>\n Some of those cases were well underway before Mueller took over\u2014it was, in fact, the early work of investigators that led to the guilty pleas last fall of George Papadopoulos and Michael Flynn\u2014and others have been launched since. All would and could continue without him. Without Mueller, the assigned FBI agents would return to the Washington Field Office and the prosecution would be placed, most likely, under the supervision of either the US attorney in DC or the Eastern District of Virginia, where the court cases are already playing out.<\/p>\n Perhaps the key lesson of Mueller\u2019s investigation thus far has been that at every step, Mueller and his investigative dream team<\/a> have known more and been further ahead in their process than the public anticipated or realized. At every stage, Mueller has surprised the public and witnesses before him with his depth of knowledge and detail\u2014and he shocked the public with news last fall that Papadopoulos had been arrested, been cooperating, and pleaded guilty, all without a single hint of a leak. The news last week that Comey himself had testified before Mueller\u2019s team weeks earlier continues the pattern that even amid the most scrutinized investigation in history, Mueller is moving methodically forward, with cards up his sleeve to play.<\/p>\n There\u2019s no reason to believe, in fact, that Mueller\u2014who has surrounded himself with some of the most thoughtful minds of the Justice Department, including Michael Dreeban, arguably the country\u2019s top appellate lawyer, whose career has focused on looking down the road at how cases might play out months or even years later\u2014hasn\u2019t been organizing his investigation since day one with the expectation that he\u2019d someday be fired and worked to ensure that this, his final chapter in a lifetime of public service at the Justice Department, won\u2019t be curtailed before it has gotten to what Mueller calls \u201cground truth.\u201d<\/p>\n A quarter century ago, when Mueller first ended up in Washington as the assistant attorney general for the Justice Department\u2019s criminal division during the George H.W. Bush administration, his aide David Margolis\u2014a lifelong Justice Department official who came to be seen as Main Justice\u2019s conscience until his death in 2016 after more than 50 years of service\u2014cautioned Mueller to pick and choose his battles. If he didn\u2019t, Margolis warned, Mueller would get chewed up by the partisan and bureaucratic bickering of the capitol. Mueller, thinking back to those days in the jungles of Vietnam, fixed Margolis with an icy stare that would become all too familiar to a generation of prosecutors and FBI agents. He replied, \u201cI don\u2019t bruise easily.\u201d<\/p>\n In the 25 years since, including 12 years atop the FBI, Mueller has given no indication that he\u2019s changed. And even today as special counsel, he\u2019s still likely getting more sleep than he did in Vietnam.<\/p>\n