"In Unpacked, Brookings experts provide analysis of Trump administration policies and news."
THE ISSUE: Special counsel Robert Mueller is currently overseeing an investigation into ties between President Trump’s campaign and Russia, and the possibility of obstruction of justice. Despite threats of removal, Trump does not possess the direct authority to fire a special prosecutor, but could potentially order someone else to do so. Should Mueller remain and find any indication of misconduct, it remains constitutionally unclear whether a special counsel could indict a president.
A special prosecutor is appointed when investigations are so sensitive that a lawyer with an added degree of separation from the administration is required.
THE THINGS YOU NEED TO KNOW:
- On May 17, 2017, the Justice Department selected Robert Mueller as the special prosecutor to oversee the investigation into ties between President Trump’s campaign and Russian officials, and the possibility of obstruction of Justice.
- A special prosecutor is appointed when investigations are so sensitive that a lawyer with an added degree of separation from the administration is required.
- The idea of a special prosecutor has existed since the Grant Administration.
- This counsel is appointed from outside of government and acts just as a governmental prosecutor would, but with more independence.
- The attorney general normally appoints a special prosecutor., but if the attorney general has a conflict, the next in charge—in this case the deputy attorney general— takes over the appointment authority.
- Robert Mueller was appointed by Deputy Attorney General Rod Rosenstein as special prosecutor because Attorney General Jeff Sessions had a conflict.
- The president, currently, does not have the authority to directly fire the special counsel. Trump could, however, order the deputy attorney general to make the firing. He would then decide whether or not to carry out the order.
- If the deputy attorney general refuses to carry out the firing, the president could call on the ‘next in line’ of succession to do it.
- In the Nixon Administration, a similar chain of events led to the famous Saturday Night Massacre.
- Richard Nixon ordered the Attorney General to fire the then special prosecutor, who refused and was then fired. The order was given to the deputy, who also refused and was fired as well. Finally, the solicitor general, who was ‘third in line’, executed the order.
- Public outcry was so great that another special prosecutor was appointed. Their work ultimately contributed, with other factors, to Nixon’s resignation.
- Down the road, Mueller may see continued periodic threats from the White House to remove him.
- If President Trump does not order Mueller to be removed, we can expect that the special prosecutor will take a fair and impartial look at the evidence in order to determine whether there was any collusion with Russia on their attacks on our democratic process during the 2016 election; any obstruction of justice by the president or those around him; and any other, related, offenses.
- Potentially, the special counsel could be required to make an agonizing decision that was queued up to the Supreme Court in United States v. Nixon but was never decided: Does a special counsel have the authority to indict a president?
- And if he doesn’t have that authority, the special prosecutor must decide what to do if he finds evidence of misconduct, including a possible referral to the House for further investigation, hearing or impeachment proceedings.