On Monday, I predicted Trump would soon begin talking about firing special prosecutor Robert Mueller. Within hours NewsMax publisher Christopher Ruddy told PBS NewsHour that the president was considering exactly that possibility.
On Wednesday, the New York Times reported that Trump had genuinely contemplated trying to get rid of the independent counsel, only to have aides talk him out of it. The Times added:
But people close to Mr. Trump say he is so volatile they cannot be sure that he will not change his mind about Mr. Mueller if he finds out anything to lead him to believe the investigation has been compromised.
Now that the Washington Post is reporting that multiple senior officials say that Mueller is investigating Trump for possible obstruction of justice, Trump's volatility will be tested. Given the credible testimony of former FBI director James Comey and the high-powered legal team assembled by Mueller, Trump is right to view the special prosecutor's investigation as a dire threat to his presidency.
Waiting for the Crazy
But since Washington under Trump experiences foolish and crazy scenarios on a regular basis, it is fair, if not necessary, to ask what will happen if and when the crazy comes to pass.
What may well happen is that Rachel Brand, a little-known conservative lawyer who now serves as associate attorney general of the United States, will face a momentous political decision.
How she could wind up helping Trump fire Mueller is a complicated story.
Chain of command
According to the law that created the special prosecutor position, only the attorney general or a responsible Justice Department has that authority to dismiss an independent counsel.
Since Attorney General Jeff Sessions has recused himself from Russia matters (with one huge exception), the decision falls to Deputy Attorney General Rod Rosenstein, then a series of senior DOJ officials. The chain of command was set by a little-noticed executive order issued by Trump on March 31, "providing an order of succession in the Justice Department."
In addition, if Trump wants to fire Mueller, he would have to certify that Mueller’s actions had created “good cause” for his removal.
Asked Tuesday what he would do if Trump ordered him to fire Mueller, Rosenstein said he had not seen any evidence of “good cause” for dismissal and asserted Mueller’s independence would be protected.
“I’m not going to follow any orders unless I believe those are lawful and appropriate orders,” he said.
A month ago, Rosenstein "trashed the reputation he had built over the years as a fair-minded and above-the-fray prosecutor by allowing Trump to use him as cover for Trump’s own decision to sack FBI Director James Comey," wrote the Post's Dana Milbank. Only Rosenstein's appointment of Mueller on May 17 "redeemed his reputation, preserved the justice system, pulled American politics back from the brink."
To approve the firing of Mueller, Rosenstein would have to repudiate his decision to hire him, which seems unlikely.
“I can’t imagine Rosenstein agreeing to act on the basis of a conclusion that the 'good cause' standard has been met,” wrote Marty Lederman, former Justice Department official and founding editor of the Just Security blog.
If Rosenstein is fired or resigns, Trump’s March 31 executive order designates the associate attorney general, as the top ranking official in the department, namely Rachel Brand.
What would Brand do?
Brand is much more likely to carry out Trump’s orders, at least judging by her record.
Confirmed by the Senate on May 18, Brand has impeccable conservative credentials, according to Breitbart News. A 1998 graduate of Harvard Law School, she is a member of the Federalist Society, the influential conservative legal network. She clerked for Justice Charles Fried, a leading conservative jurist, on the Massachusetts Supreme Judicial Court and for Justice Anthony Kennedy on the U.S. Supreme Court.
Brand has been politically active on behalf of Republican presidents. During the Bush administration, she helped prepare Supreme Court nominees Samuel Alito and John Roberts for Senate confirmation.
She has a reputation for bipartisanship, which could help her in time of controversy. President Obama appointed her to the Privacy and Civil Liberties Oversight Board, an independent agency that seeks to protect civil liberties and privacy in the so-called “war on terrorism.”
She has the esteem of more liberal colleagues. Lederman predicts Brand would reject any Trump order to fire Mueller.
“If Trump removes Rosenstein, the new acting AG would be associate AG Rachel Brand, another excellent and principled official who is also very unlikely to play along with such a plan," Lederman wrote.
Kate Martin, a senior fellow at the liberal Center for American Progress, who saw Brand in action at the Privacy and Civil Liberties Oversight Board, disagrees.
“My dealings with Rachel on issues surrounding national security surveillance leave me concerned that her views on the lack of restraint on executive power would lead her to agree to a request from this president that should be rejected,” Martin said in a phone interview with AlterNet.
Bork, the role model
In a speech at a Federalist Society conference in February 2015, Brand argued that in the context of national security, the president must be able to exercise his “power with the nimbleness and flexibility required to predict and respond to a very wide array of foreign threats.”
Thus Brand may be sympathetic to the arguments of White House lawyer Jay Sekulow. When asked about the possibility of firing Mueller, Sekulow's first response was to assert that President Trump is a “unitary executive.” The concept of a unitary executive, advocated by former Vice President Dick Cheney, holds that the president has virtually unlimited powers in the area of national security that cannot be curbed by the courts or the Congress.
When President Nixon wanted to fire Watergate special prosecutor Archibald Cox in October 1973, Attorney General Elliot Richardson and his top two deputies refused to carry out his order and were fired. The task of dismissing the special prosecutor fell to the fourth ranking official in the department, an opinionated former Yale Law School professor named Robert Bork. He was willing to carry out Nixon’s order, and Cox was gone.
The Saturday Night Massacre slowed the Watergate investigation while devastating Nixon’s credibility. Democrats advocating Nixon's impeachment, politically isolated up until that point, were emboldened. Congressional Republicans, previously loyal to Nixon, began to abandon him. Ten months later, on the brink of impeachment and conviction, Nixon resigned.
Bork went on to become a conservative hero, not the least for his refusal to abandon Nixon. In the 1980s, President Reagan named him to a federal judgeship and in 1987, nominated him for the Supreme Court. When the U.S. Senate rejected his nomination because of his extreme positions on civil rights and abortion, Bork became a martyr of the American right and a role model for conservative legal activists.
Is Rachel Brand another Robert Bork? I suspect we may find out sooner rather than later.