Throughout the 2016 campaign and into Donald Trump’s first weeks as president, there were numerous very serious D.C. media people who were fully prepared for Trump to pivot into behaving like an actual dignified president rather than an unhinged loudmouth by way of a garishly costumed Batman villain. Suffice it to say, the pivot never happened. However, Trump has engaged in a completely different kind of pivot in the aftermath of the midterm elections.
Based on last week’s events, Trump has disposed of any remaining pretense of innocence. In other words, before the election, Trump at least tried to pretend he wasn’t a disruptive-slash-destructive chaos agent. But now, in defeat, Trump’s putting it all out there, literally daring the incoming Democratic House to do something about it. Look no further than his press conference the day after the election for proof that he just doesn’t give a flying rip about whether he looks guilty as hell.
His primary source of agita continues to be Robert Mueller’s investigation into Russia’s cyberattack against the 2016 U.S. election. Trump used to at least pretend he wasn’t obstructing the special counsel’s process, but now the mask is off. With the firing of Jeff Sessions, the stripping of Russia duties from Rod Rosenstein and, especially, the potentially illegal and unconstitutional appointment of Matt Whitaker as acting attorney general, Trump is doing what he has to do to save his own ass. And he doesn’t care who knows it.
If Trump still cared about appearances, he never would have made this move with Sessions, Rosenstein and Whitaker. At the very least, he would’ve fired Sessions, then allowed the normal succession process take place, per the law. The Trump White House, on the other hand, has taken the position that the Federal Vacancy Reform Act (FVRA) allows the president to appoint anyone he wants to take over attorney general duties while a permanent replacement is being confirmed. Numerous arguments have been made, however, that U.S. Code Section 508 supersedes the FVRA, since the former is more specific than the language in the latter. Furthermore, the FVRA says nothing about what happens if a cabinet official is fired, as Sessions clearly was. There’s also an argument, as presented by George Conway, Kellyanne Conway’s husband, suggesting that Trump’s appointment of Whitaker is unconstitutional.
While these finer points of the law are crucial yet debatable, what’s completely clear is that Trump deliberately blocked Rosenstein from being upped to acting A.G. by awkwardly shoehorning a loyalist into the post, meaning Whitaker, who has been vocally opposed to the Mueller investigation.
It couldn’t be more obvious that Whitaker is there to help Trump escape legal jeopardy by undermining the special counsel. And Trump doesn’t care that it’s obvious. Not any more.
Put it this way: if obstructing Mueller's investigation isn’t the main reason Whitaker was appointed (in possible violation of the law and the Constitution), then Trump should be fine with Whitaker recusing himself from Trump-Russia matters due to his public statements, right? It goes without saying that's not the case. Trump would never in a million years go along with Whitaker recusing himself, leaving Rosenstein to continue in the role until the end. Trump needs Whitaker to stymie Mueller, otherwise why take these potentially illegal measures to sidestep the law?
Whether his appointment is legitimate or not, Whitaker is the acting attorney general, at least for the moment, which gives him full oversight of the Russia investigation, including the power to bleed it dry or to let it continue uninterrupted. But does anyone seriously believe Whitaker won’t at least try to slash Mueller’s tires, disabling the special counsel’s office from pursuing Trump and his cronies?
So, what happens next in this history-shaping Beltway chess game? There are several possibilities.
1) Mueller is fired. Again, Trump doesn’t care about appearances any more, so Whitaker could very easily fire Mueller. Trump will naturally deny that he ordered Whitaker to do it. Then Whitaker, with Trump’s approval, will appoint a replacement prosecutor with unquestioned loyalty to Trump. If Sen. Lindsey Graham isn’t earmarked to become the permanent attorney general, it wouldn’t surprise me if Graham were promoted into the post. Or worse. Fox News Channel’s Jeanine Pirro could easily become the next special counsel. Her pursuit of Robert Durst would provide the “experience,” and there’s just no way congressional Republicans would do a damn thing to stop it. No matter who the replacement may be, we should brace ourselves for Mueller to be sacked.
2) Mueller is declawed. There are a number of areas where Whitaker could handcuff Mueller. Whitaker once suggested on television that the Justice Department could essentially defund the special counsel's office, making it impossible for Mueller to continue. Another possibility is to bury Mueller's forthcoming report, since the rules give the A.G. full power to decide what, if anything, can be done with the document. Unless we’re badly underestimating his integrity, Whitaker will never hand down that report to Adam Schiff and Nancy Pelosi. Not in a million years. Subpoenas could be torn up and all kinds of new limitations on the extent of Mueller’s reach could be handed down, including the all-important one: Don’t mess with POTUS.
3) Mueller continues as normal. Sadly, this is the least likely scenario given the politics of Trump’s newly-installed stooge at the Justice Department. But it’s possible that a number of forces could push back against the president, forcing out Whitaker and allowing Rosenstein to continue supervising the Russia probe, now presumably as acting attorney general. (Previously, Rosenstein served as acting A.G. only for the purposes of supervising Mueller. After Sessions' departure, Rosenstein has returned to his normal duties.)
If Whitaker is ousted, it would have to be by the Supreme Court -- and, amazingly, this is a greater possibility than you might think. It turns out, Clarence Thomas once wrote a concurring opinion in which the conservative justice argued the president can’t appoint anyone to a Cabinet-level post without Senate confirmation. The rest of the Supremes would likely go along with this view, but by then it might be too late.
What’ll happen if Mueller is fired or replaced with a Trump disciple? The small-c conservative bet would be that Mueller does nothing. He’s a by-the-book prosecutor and his discipline is nearly unmatched, which would suggest he will gracefully step aside without any fireworks. However, we shouldn’t rule out a suicide switch. If the crimes he has uncovered are horrendous enough and the threat to the American people is dire enough, I wouldn’t be surprised if copies of Mueller’s documentation, and a draft of his final report, end up in the hands of the New York Times and the Washington Post. The bulk of Mueller’s work would also likely end up on the doorsteps of Reps. Adam Schiff, D-Calif., and Jerry Nadler, D-N.Y., incoming chairs of the House Intelligence Committee and the House Judiciary Committee, respectively. Impeachment proceedings could potentially follow.
Here's one last thing to keep in mind. While Mueller’s work continues to be the central investigation into Trump’s criminality, meaning the Russian attack as well as Trump’s possible complicity, don’t forget the Michael Cohen investigation in the Southern District of New York, which also falls under Whitaker’s authority now. This investigation is seen by many inside the White House as potentially more damaging to the president than whatever Mueller finds. I’d watch for Whitaker to kick a plug out of the wall in that federal prosecution as well.
No matter how this story swings, it’s more obvious than ever that the president of the United States is continuing to obstruct justice, and simply doesn’t care that it’s as clear as crystal. Along those lines, I can’t help but to invoke my Trump rule as cold comfort: Trump always makes things worse for Trump. This and the incoming Democratic House are the only things allowing those of us still tethered to reality to sleep at night, knowing that Donald Trump is plainly and clearly going to the mattresses.