//  6/19/17  //  Commentary

With news reports and President Trump’s tweets suggesting the President might try to fire special counsel Robert Mueller, there’s been a profusion of excellent commentary on whether doing so would be legal.  I recommend in particular Marty Lederman’s analysis here on Take Care.  I can’t improve on Marty’s work, but want to emphasize one central point he makes:  that the President lacks authority to fire the special counsel himself and could only do so by issuing a directive to Acting Attorney General Rod Rosenstein.

Even apart from the various legal limitations on removal of special prosecutors in the applicable regulations, the power to conduct litigation on behalf of the United States, oversee the Department of Justice’s performance of that function, and allocate litigation and investigative responsibilities within the Department is generally vested by statute in the Attorney General.  See 28 U.S.C. §§ 509, 510, 515, 516, 519, 533.  As the Supreme Court held in United States v. Nixon, “Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government.  It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.”  418 U.S. 683, 694 (1974) (internal citations omitted).

Proponents of some particularly strong theories of a “unitary” executive branch might argue that all such functions vested in executive officers of the federal government are necessarily vested in the President as well.  But that theory of separation of powers is unpersuasive, as Marty suggests.

In a nutshell, Congress holds authority under the Appointments and Necessary and Proper Clauses to create offices and vest them with particular powers and responsibilities.  Under the Appointments Clause, appointees to such offices typically require Senate confirmation.

The President may then have authority to supervise the principal officers filling them, and even to fire them for disobeying his directives or failing to comply with the law.  The President, after all, has ultimate responsibility to “take care that the Laws [are] faithfully executed.”  But the Constitution does not give him authority to exercise every power of the federal government personally.  Indeed, the Take Care Clause’s indirect formulation—obligating the President to “take Care” that the laws “be faithfully executed” rather than to execute the laws himself—indicates as much.

I emphasize this point because it is not only formally correct, in my view, but also functionally important, for reasons that the current special counsel controversy well illustrates.

Congress’s power to vest particular authorities in particular offices enables what I’ll call here the “fire alarm function” of office-holding.  By resigning or forcing the President to fire them rather than exercise their authorities in a way they consider illegal or unwise, government officers can sound a public alarm.  (For those interested in more detail on this point, a draft article by Michael McConnell highlights this practical effect of Congress’s authority over offices, with reference to the same key historical examples addressed below.)

Consider again the current special counsel controversy:  In appointing the special counsel, Rod Rosenstein, as Acting Attorney General for this purpose, was exercising a statutory authority—an authority conferred, as the Supreme Court recognized in Nixon, by the Attorney General’s powers to conduct federal litigation, oversee the Justice Department, assign litigation functions, and appoint investigative and prosecutorial officials.  Because authority to appoint the Special Counsel (an inferior officer) thus belongs to the Acting Attorney General, and because Congress has not otherwise assigned removal authority with respect to this officer, only the Acting Attorney General, and not the President, can fire Mueller.

That means that if Rosenstein refuses to fire Mueller, Trump can get his way and have Mueller fired only by firing Rosenstein and possibly other Acting Attorney Generals who replace Rosenstein—on down the line until he finds someone willing to carry out the directive.  That’s precisely what happened in the Saturday Night Massacre, and the Saturday Night Massacre also illustrates why this structural feature of our Constitution is important.  In that episode, it was quite significant that President Richard Nixon could not fire the special prosecutor Archibald Cox himself, even though Nixon eventually was able to get rid of Cox.

For one thing, as these examples illustrate, the need to act through subordinates may itself impose constraints on illegal or ill-advised actions by Presidents.  In the current example, if Trump can’t find any lawfully acting subordinate officer to carry out the firing, then it won’t happen.

More importantly, though, this feature of executive branch structure enables government officers to pull an alarm bell by quitting (or forcing the President to fire them).  Doing so may heighten the issue’s political salience and thus help bring about political enforcement of legal requirements and sound policy.

The Saturday Night Massacre is not the only example of this fire-alarm function mattering.  Another important historic example involved President Trump’s hero Andrew Jackson.  President Jackson’s Treasury Secretary famously refused to carry out President Jackson’s directive to remove federal deposits from the Bank of the United States, an action the Secretary felt was improper.  As a result, Jackson had to fire and replace the Secretary to get the job done.  The Senate ultimately censured Jackson for this action (though a later Senate dominated by Jacksonians expunged the censure).

Normally, of course, executive officers like the Attorney General do what the President asks because they are part of his team (more often than not he appointed them) and because they ultimately serve at the President’s pleasure.  Normally, indeed, they should do so.  But the constitutional structure of office-holding gives them a fire alarm to pull if they choose.  That option has mattered in our history, and it might matter again—though I certainly hope the President won’t go down this path.

That said, though, fire alarms only work if the fire department comes.  Were Trump to fire Rosenstein so as to get Mueller fired, the real question (as Marty and others including Jack Goldsmith on Lawfare have emphasized) is how Congress responds.

The legislative branch has tools at its disposal.  It can independently investigate the President and executive branch conduct.  Ultimately, it can impeach and remove the President or other officers.  More immediately, as I keep blogging about and address in this draft article, Congress holds power over appropriations—a power it could use to force the President to keep the Russia investigation open, or at the very least to punish him politically by depriving his priorities of support.  As Goldsmith put it on Lawfare, if these available means of checking the president no longer work, then “we are indeed in trouble.”

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP