Can President Trump fire special counsel Robert Mueller? Here's what could happen if he tries

  • President Donald Trump has again floated the idea of firing special counsel Robert Mueller.
  • Mueller is investigating Russian interference in the 2016 presidential election and possible collusion with Russians by Trump campaign officials.
  • FBI agents in New York raided the office and residence of Trump's personal lawyer Michael Cohen on a referral by Mueller.

The stunning FBI raid that seized documents held by President Donald Trump's personal lawyer led reporters to ask Trump whether he will fire Robert Mueller, the special counsel investigating people close to him.

"Why don't I just fire Mueller?" a seething Trump said Monday, after the raid on his lawyer Michael Cohen's office and residence that was sparked by a referral from Mueller to federal prosecutors in New York.

"Well, I think it's a disgrace what's going on. We'll see what happens," Trump said. "Many people have said, 'You should fire him.'"

That's a lot easier said than done.

Donald Trump
Olivier Douliery | Pool | Getty Images
Donald Trump

And it also might be hard for Trump to duck criminal charges if Mueller or another prosecutor finds that the president also broke the law, given events that occurred during the Watergate era and the tenure of President Bill Clinton.

Here's a set of questions that will be on the minds of many people in Washington and elsewhere as Trump's battle of wills with Mueller plays out.

Can Trump fire Mueller?

White House press secretary Sarah Huckabee Sanders said Tuesday that Trump "certainly believes" he has the power to fire the special counsel. But a former Watergate prosecutor has a different answer to the question.

"No," said Jill Wine-Banks, who worked on the Watergate investigation of President Richard Nixon and his subordinates.

That is, Trump can't fire Mueller directly.

The law that created the position of special counsel allows only the attorney general of the United States or someone else with the authority of that position to fire Mueller, Wine-Banks noted. The president cannot do it.

Related: How financial markets would react if Trump fired Mueller

In this case, Attorney General Jeff Sessions recused himself from issues related to Mueller's probe. Therefore Mueller can only be fired by Deputy Attorney General Rod Rosenstein, who is acting AG for the purposes of the investigation. That investigation was originally looking into Russian interference in the 2016 presidential election and possible collusion by Trump campaign officials with Russians, but since has expanded into other areas.

"Only he can do it, and he can only do it for cause," Wine-Banks said of Rosenstein.

To compare, Nixon ordered Attorney General Elliot Richardson to fire Watergate special prosecutor Archibald Cox in the infamous "Saturday Night Massacre" on Oct. 20, 1973. Cox had refused to drop his subpoena of Nixon's taped White House conversations. Richardson resigned rather than fire Cox, and so did his deputy, William Ruckelshaus.

The third-ranking Justice Department official, Solicitor General Robert Bork, obeyed Nixon's order to fire Cox. That didn't stop the Watergate probe, which was taken over by Bork's appointee, Leon Jaworski.

Wine-Banks said Trump could get rid of Mueller in the same fashion, even if Rosenstein resigned — or was fired himself — after being told to dismiss the special counsel.

"Eventually, you could get somebody who would do anything the president would ask," Wine-Banks said. "It would be wrong. There would be mass protests in the streets."

What would happen to the federal government if Mueller is fired?

"I believe impeachment proceedings will commence" against Trump, said Harry Rimm, a trial lawyer and former federal prosecutor. But that doesn't necessarily mean that the president would be impeached.

"Even though Republican senators have suggested that firing Mueller would be suicide and create a constitutional crisis for Trump, it is unclear if there are sufficient votes for impeachment, as the House has the sole power of impeaching and the Senate has the sole power to try impeachments," Rimm added.

Wine-Banks agreed.

"In normal times, under normal political conditions, they would, of course, start impeachment proceedings immediately," Wine-Banks said.

But "this is not normal," she added, pointing out the reluctance of most GOP lawmakers to challenge Trump, as well as the lack of the kind of bipartisan working relationships seen during the Nixon era in Congress.

Can Trump be charged with crimes without being impeached?

Maybe.

There is no law that says a sitting president cannot be criminally charged in the courts, nor is there one saying he can be charged. And there is no case law that directly discusses that issue.

Rimm said there is "a school of thought," which seems to include the Justice Department "believing that a sitting president is immune from criminal prosecution and can't be indicted while in office."

"Or, if he is indicted, the indictment has no legal effect," Rimm said. "Under this approach, you can remove the president from office solely through impeachment and then indict him after any Senate conviction order to punish."

Wine-Banks said she believes "a sitting president can be indicted." She was among the prosecutors on Jaworski's team during Watergate that wanted to indict Nixon.

"There are many academic articles written that would support the fact that a sitting president could be indicted," Wine-Banks said.

She noted there are two court cases that held that a sitting president could be forced to deal with pending civil cases while in office.

One case was the Supreme Court decision that forced Clinton to answer questions in the sexual harassment lawsuit filed by former Arkansas state employee Paula Jones. Clinton's lie under oath denying his affair with White House intern Monica Lewinsky during that case led to his impeachment while president. The Senate didn't convict him, however.

The other case involves Trump. Last month, a New York state judge ruled that "no one is above the law" as she rejected Trump's bid to dismiss a defamation lawsuitby Summer Zervos, a former contestant on "The Apprentice" who says Trump groped her.

The judge in that case did not accept Trump's argument that a sitting president cannot be subject to a state court's jurisdiction.

Wine-Banks also pointed out that in the fall of 1973, Nixon's vice president, Spiro Agnew, resigned after being charged with felony tax evasion.

Agnew had been under investigation by the U.S. attorney for Maryland on suspicion of accepting bribes while governor of that state and as vice president.

The courts never ruled on Agnew's initial claim that a sitting vice president could not be indicted.

Wine-Banks said the fact that Agnew, who was second in line to the president, was criminally charged could help a future claim that Trump or another sitting president is subject to potential criminal prosecution.