“An attack on our country,” a clearly agitated President Trump said of the search of his attorney’s office and home. Of special counsel Robert S. Mueller III, Trump said, “Many people have said, ‘You should fire [Mueller].’”
Many people are wrong, actually. They suffer from an inability, chronic in this administration, to see two steps ahead. The state of the Mueller probe – and with the expansion into the Southern District of New York, it is not just the Mueller probe – is at a new, perilous stage for the president and his associates.
But what Trump, in his fury, fails to comprehend is that firing Mueller will not help matters; it will make them worse. Trump’s best bet, at this point, is to hunker down and endure, as much as that goes against the president’s counterpuncher instincts. Allowing Mueller to remain on the job and finish his work is the president’s best chance – and it’s a good one – for survival, politically and legally.
Get a lawyer
Strangely, leaving Mueller in place and allowing the investigation to run its course is best for the country, for the rule of law – and for Trump. Mr. President, instead of fulminating about getting rid of Mueller, you should turn your attention to finding yourself a good criminal lawyer.
Here’s why: Firing Mueller, or firing Deputy Attorney General Rod J. Rosenstein for refusing to dismiss Mueller and then finding another Justice Department official willing to do the deed, won’t make the investigation go away.
The investigation into Russian interference in the 2016 election and the Trump campaign’s dealings with Russians predated Mueller’s appointment and – unless Trump is willing to take the extraordinary step of ordering the entire investigation to cease – will outlast the existence of the special counsel. The day after President Richard Nixon fired Watergate special prosecutor Archibald Cox and purported to abolish Cox’s office, the prosecutors on Cox’s team turned up at work as Justice Department lawyers. The investigation continued, even before Nixon, under pressure, named Leon Jaworski to replace Cox.
For Trump to fire Mueller, or engineer his removal, would only risk inflaming, potentially, the otherwise compliant, supine congressional Republican majority. Maybe congressional Republicans would roll over for a Mueller firing, too – there’s no underestimating this Republican Party – but why risk it?
Further, with the referral of the investigation of Trump’s personal lawyer, Michael Cohen, to federal prosecutors in Manhattan, this thing has now spread beyond the president’s ability to contain it. What is he going to do: Fire the entire Southern District? This is a wildfire Trump has to let burn; he can’t put it out – probably not even with a spate of mass pardons.
And as much as Trump may tweet about the supposed death of attorney-client privilege, the fact remains that searches of lawyers’ offices are not undertaken lightly, on a whim and in a vague hope to find something relevant.
Under established Justice Department procedure, such a search requires high-level departmental approval. Because of the sensitivity of attorney-client communications, the U.S. Attorneys’ Manual instructs prosecutors “to take the least intrusive approach consistent with vigorous and effective law enforcement” and consider using less intrusive measures, “unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.” A federal judge must approve the request, which entails a finding that there are particular items to be seized, as well as probable cause to believe there is evidence a crime has been committed.
In other words, this is as far from justice – or Justice – gone rogue as can be.
So if Trump can’t make his Mueller et al problem disappear, can he survive it? That’s his best strategy, if he would slow down enough to think this through. First, given the long-standing Justice Department position against indicting a sitting president, Mueller is not likely to bring criminal charges against Trump directly.
As The Washington Post has reported, his more likely route is, in addition to the indictments of lesser figures, to submit a report or series of reports to Rosenstein. Those will probably make their way to Congress and, eventually, the public. They could easily form the basis for impeachment proceedings, especially if Democrats win a majority in the House of Representatives in November’s midterm elections.
But even if a House Democratic majority launches impeachment proceedings, even if it votes to impeach the president, then what? Ask President Bill Clinton, who survived the same. A two-thirds vote by the Senate is required for conviction. Even if Democrats win a majority of Senate seats as well, that would likely leave them far short of the votes to remove Trump from office – unless Mueller comes up with evidence against Trump so devastating that even this GOP crowd can’t ignore it, in which case nothing could save Trump.
So hunkering down appears to be, at this point, the wisest course. Even if it is the one Trump, by instinct and history, is least likely to take.
Washington Post Writers Group