It has long been conventional wisdom that the “Saturday Night Massacre” — the October 1973 episode in which President Richard M. Nixon tore apart his Justice Department to fire Watergate special prosecutor Archibald Cox — badly backfired against Nixon. Not only did the move produce blowback from the public and on Capitol Hill, but it effectively required the White House to accept the appointment of another special prosecutor, whose investigation, along with parallel efforts in Congress, eventually provoked Nixon’s resignation just ahead of impeachment charges less than 10 months later.
The news Monday that Robert Mueller’s investigation of possible connections between the Trump campaign and Russia had yielded indictments of Paul Manafort and Rick Gates and a plea deal with George Papadopolous will no doubt reinvigorate discussions within the White House about repeating history and cutting off Mueller’s investigation before it can go any further. For as bad an idea as this might seem to be at first blush, if President Donald Trump really is worried about where Mueller’s investigation might lead, now may be the best possible moment for him to take such a step — and to dare the members of his own party in Congress to respond.
There’s little question that, legally, Trump has the authority — at least indirectly — to do just that. Although the special counsel can only be removed for cause by the attorney general (here, Deputy Attorney General Rod Rosenstein, because Attorney General Jeff Sessions has recused himself), the same doesn’t follow for either Sessions or Rosenstein, both of whom serve at the pleasure of the president. Ditto for the third in line at the Justice Department — Associate Attorney General Rachel Brand. Trump can request that any of those three fire Mueller, and he can fire each of them for refusing to do so in favor of someone who will: The Federal Vacancies Reform Act of 1998 would allow Trump to name an acting attorney general from among a much broader class of candidates, including anyone currently holding an executive branch position that requires Senate confirmation (such as EPA Administrator Scott Pruitt), or even senior Justice Department civil servants who have served for more than 90 days. It’s not difficult to believe that there is at least one such officer who would agree to do the president’s bidding and shut down the investigation.
In Nixon’s case, such a move was a huge political mistake, at least in part because he faced a Congress controlled by Democrats. As Anthony Lewis wrote about the events of that fateful Saturday night, “Even Congress, which so often rolls on its back like a spaniel, is beginning to face the necessity of impeachment.” Here, by contrast, Trump faces a Congress controlled by the same Republican Party through which he steamrolled to win the presidential nomination — and a Congress that has shown little meaningful interest in his potential complicity in Russian interference in last year’s campaign.
It’s true, of course, that some Republican leaders in Congress have expressed support for Mueller, and that even more have continued to defend Sessions against Trump’s occasional public bullying — Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, said Monday that the White House should let Mueller do his job and let the legal system work.
But there’s a Beltway-size chasm between saying the right thing and taking action to do the right thing. And it is not at all clear, especially with the 2018 primary season approaching, that a repeat of the Saturday Night Massacre would actually awaken the relevant House committees from their Trumpian torpor — or distract them from their apparently far-more-important ongoing investigations into the Clintons. Indeed, with several Republican incumbents facing (and fearing) primary challenges from their right, it’s not hard to imagine a scenario in which Trump dismantles the Russia investigation and forces GOP members of Congress to choose between their political future and standing up to the president. We can certainly hope that, like Sens. Bob Corker and Jeff Flake, our elected representatives opt for the latter. The more important point to keep in mind is that it wouldn’t be implausible for Trump to count on the former.
Of course, if Trump (and those closest to him) really did nothing wrong, then there’s no need to take such a drastic step: Mueller’s investigation will, as White House press secretary Sarah Huckabee Sanders insisted again Monday, simply wind down, snagging perhaps a few more peripheral figures (if that’s what former national security adviser Michael J. Flynn is these days) on its way out the door.
If there is something to hide, it’s worth stressing how dangerous and unhealthy it would be to our constitutional system for the president to use his authority in this manner. For as much as this administration has run roughshod over well-established norms protecting the Justice Department from White House interference, a modern Saturday Night Massacre would cement those norms’ evisceration — with long-term, and deleterious, consequences for those of all political stripes.
But if the president and his advisers are truly worried about what Mueller might uncover or what evidence he has received from Papadopolous (and others who might already — or soon — be cooperating), it seems like the time to act is sooner, rather than later. The more indictments Mueller hands down, and the closer he gets to Trump’s inner circle, the more likely it becomes that Republicans in Congress will suddenly find the courage to stand up to the president. If, instead, Trump uses Monday’s news as provocation to shut Mueller down, he’ll be calling Congress’s bluff — and daring his own party to stand up to him based solely on the existing record. It’s just not that difficult to see how a rational president could view that as his best option — even (if not especially) if it’s the country’s worst.
Steve Vladeck is a professor of law at the University of Texas, co-editor-in-chief of Just Security, co-host of the National Security Law Podcast and a CNN legal analyst.
Follow BDN Editorial & Opinion on Facebook for the latest opinions on the issues of the day in Maine.