President Donald Trump might be able to get rid of special counsel Robert Mueller — but he can’t kill off the Russia probe.
Trump aides and associates have long warned him that ousting Mueller would have messy political consequences. But it’s also unlikely to solve many of his legal worries. A leaked list of questions Mueller wants to ask Trump only underscores that, even if the special counsel is gone, his investigation — or offshoots of it — will live on.
Justice Department officials and FBI agents could simply pick up where a fired Mueller left off. State attorneys could bring their own charges against Trump and his associates. Even as a private citizen, Mueller might be able to publicize or share his findings with Congress.
“Bureaucracies are complicated animals and this one has metastasized beyond the Mueller investigation,” said Benjamin Wittes, a Brookings Institution senior fellow and editor in chief of the blog Law Fare. “That’s the thing that functionally protects the investigation.”
When Mueller was appointed last May, he assumed control of a pre-existing Justice Department probe into Russian election interference. Should Trump insist that Mueller be fired — many experts believe the direct order must be given by his Justice Department supervisor — the investigation would revert to federal officials with powers to question witnesses, issue subpoenas and seek criminal indictments.
“Those career people won’t pack up their bags and go away,” said Gene Rossi, a former federal prosecutor. “And if a certain president thinks Mueller is aggressive, the [Justice Department’s] Public Integrity Division would not let this go.”
Trump could always try to install new top Justice Department officials who might agree to rein in or end the Russia probe. He has reportedly mused about firing Mueller’s supervisor, Deputy Attorney General Rod Rosenstein, whom Trump complains has given the special counsel too much latitude. (Attorney General Jeff Sessions has recused himself from the Russia probe because of his contacts with Russia’s ambassador in 2016.)
Even a more compliant successor to Rosenstein might not be able to wind down the Russia investigation — at least not without fierce resistance from an outraged law enforcement and national security bureaucracy.
That’s the view of former FBI Director James Comey, whom Trump fired in May 2017, and who said during a Monday appearance in Washington that ousting Mueller “would be utterly ineffective in practice” and ultimately “won’t make a difference.”
“[Y]ou’d have to fire the entire FBI and the entire Justice Department.” Comey said.
Comey added that it would be “interesting to see what would happen next, because I could imagine U.S. attorney's offices picking up pieces of it, different FBI offices picking up pieces of it.”
At least two U.S. Attorneys have already played a key role in the case: the top federal prosecutor for the southern district of New York executed last month’s raid on longtime Trump personal attorney, Michael Cohen. And the then-U.S. Attorney for the Eastern District of Virginia, Dana Boente, issued subpoenas last year related to former Trump campaign chairman Paul Manafort and former national security adviser Michael Flynn.
Trump also can’t stop states from acting if they suspect state crimes like wire and mail fraud or money laundering. Most aggressive on this front is New York Attorney General Eric Schneiderman, who started working last year with Mueller’s team on its probe into Manafort and his financial transactions. Schneiderman has largely stepped back as Mueller prosecutes Manafort in federal courts. But sources familiar with the Empire State Democrat’s work said he remains engaged in the Russia case and could act as a backstop to Mueller.
Last month, Schneiderman called on lawmakers to change a New York statute which bars recipients of presidential pardons from prosecution for a similar state crime. That was widely seen as a response to concern that Trump might pardon aides like Manafort or Cohen — or even himself.
“It’s a race against time,” said Democratic state Sen. Todd Kaminsky, a former federal and state prosecutor. Kaminsky has introduced a bill to change the law, which faces an uphill battle in the GOP-controlled state Senate.
Spokespersons for the attorneys general of Delaware and Virginia, where Mueller’s Manafort indictment alleges crimes took place, declined to comment on any action they might take in the event of pardons or Mueller's firing.
Mueller’s probe has other potential stopgaps too. Whistleblower advocates Mark Zaid and John Tye say the special counsel should have a contingency plan to send his critical investigative work to Congress in the event he is fired.
History shows the need for swift action: After President Richard Nixon engineered the firing of Watergate special prosecutor Archibald Cox in the infamous October 1973 “Saturday Night Massacre,” FBI agents quickly sealed off Cox’s office and the sensitive investigative files inside.
Mueller or someone on his team should be prepared to move fast to Capitol Hill with printed documents or encrypted hard drives, Zaid and Tye argued in a New York Times op-ed last week, warning that Trump could send federal marshals to arrest anyone carrying documents to Congress.
“[I]f the evidence safely reached Congress, the president probably could not contain it,” they wrote.
Constitutional protections would allow willing lawmakers to legally disclose even classified information on the House or Senate floor.
In an interview, Zaid stressed that such a response would be fully legal. “It’s not [Edward] Snowden. It’s not [Chelsea] Manning,” he said.
A fired special counsel could also try to get his findings out by self-publishing them. The Justice Department would have authority to review Mueller’s work and redact classified portions. But Zaid and Tye, co-founders of the non-profit legal group Whistleblower Aid, argue Mueller would have First Amendment rights to sue if he wanted to question any redactions.
Mueller could also try to convince a grand jury to return a sealed indictment against the president. Corey Brettschneider, a Brown University political science professor who wrote about this strategy in POLITICO Magazine, acknowledged the special counsel would first need to convince his superiors to overrule two Justice Department opinions that say a sitting president can’t face criminal charges while in office.
But if Mueller can clear that hurdle, he’d be well positioned to quietly get charges against Trump into the legal system “while avoiding the risk of provoking Trump to try to further impede the probe.”
Most important, Brettschneider argued that the filed sealed indictment “would outlast” Mueller and could only be dismissed by a federal judge. In addition, he said a sealed indictment would also ensure that the statute of limitations for crimes Trump might be charged with would not expire.”
“This leaves open the possibility of Trump being tried in the future,” he said.
Some legal experts scoff at such talk.
“What we’re seeing is, ‘Now let’s see how far we can stretch the law to get Trump,’" said the retired Harvard law professor Alan Dershowitz, who recently met with Trump and his staffers at the White House. “People are being very clever about it — but not very wise.”