Bob Mueller is famously nonchalant amid life’s toughest moments. Much of that public calm stems from the fact that he’s a Magnificent Bastard and, specifically, the lessons of December 11, 1968. That day, then Second Lieutenant Mueller’s squad—part of the Second Platoon, Hotel Company, Second Battalion, Fourth Marine Regiment, the so-called “Magnificent Bastards”—was on patrol in Quang Tri Province when they came under heavy fire from as many as 200 North Vietnamese troops. They almost immediately began to take casualties.
Mueller organized a defensive perimeter and moved among his Marines, encouraging them to return fire; they fought for hours. At one point, Mueller led a fire team into enemy territory to retrieve a mortally wounded comrade. The rest of his unit survived, and he received a Bronze Star, with Valor, for his actions and leadership that day.
That day wasn’t Bob Mueller’s first time in combat, and it wouldn’t be his last. It wouldn’t even necessarily be his most consequential: Four months later, he was shot through the leg by an AK-47.
The time in Vietnam, though, gave him a hard-won perspective on the bureaucratic fights where he’d spend most of the rest of his career. He considers himself lucky to have survived Vietnam—and his life of public service ever since stems, in part, from that gratitude. His college classmate David Hackett never got the chance to come home, and he speaks regularly of Hackett’s sacrifice.
Even in Mueller’s toughest moments stateside—the months after 9/11, when he was FBI director, and the 2004 hospital showdown that brought him and Jim Comey eyeball to eyeball with the Bush administration—he’s evinced a certain calm amid Washington’s slings and arrows. As FBI director, even facing the daily fears of terrorism, spy plots, and cyberattacks, he used to joke, “I’m getting a lot more sleep now than I ever did in Vietnam.”
Still, you have to wonder how well Mueller is sleeping these days. It’s hard to imagine that he has faced a more challenging—or more potentially consequential—week than this past one, which has seen a steady series of attacks from the Trump administration and congressional Republicans on both his own investigation and the two institutions that he devoted almost his entire life to serving, the FBI and the Justice Department.
So let’s do a quick review of recent developments in Washington and then consider a question that has yet to get a thorough airing in the coverage of the Russia investigation and its attendant sideshows: What would happen to the investigation if Mueller were to be fired?
First, the recent barrage of developments. It’s hard to keep the hits straight; they’ve come so quickly and we’ve grown so desensitized to major, Earth-moving news stories coming and going ephemerally in the Trump Age. Just in the past 10 days, we’ve seen news that Mueller’s team has interviewed the sitting attorney general, Jeff Sessions, as well as the former FBI director Jim Comey, and begun to talk to the White House about interviewing the president himself—all signs that Mueller’s efforts are reaching a critical moment.
Then there was the news that last summer, in June, President Trump ordered White House counsel Don McGahn to fire Mueller as special counsel—a power that doesn’t technically belong to McGahn—and that McGahn resisted, saying that he’d resign rather than begin to implement the order, a powerful sign that the president’s own lawyer saw a corrupt intent behind the president’s direction.
On Capitol Hill, we’ve borne witness to a fantastical pas de deux between congressmembers Devin Nunes and Adam Schiff, the top Republican and top Democrat respectively on the House Intelligence Committee, as Nunes—who last year breathlessly reported that he uncovered evidence of “deep state” malfeasance against President Trump and rushed to the White House to brief the president, only to later admit that his evidence itself came from the White House, an incident that so compromised his own integrity that he was forced to the sidelines of the Russia investigation—now claims to have singlehandedly uncovered a vast government conspiracy underway at the FBI and the Justice Department.
And he’s managed to explain the entire plot in a four-page memo that the House is moving, in perhaps a literally never-before-used protocol, to force to be declassified. The Trump appointees inside the Justice Department say doing so would compromise critical classified information and would be “extraordinarily reckless,” but the White House, which is currently reviewing the memo, doesn’t appear to agree. (As he was leaving the House chamber after his State of the Union speech Tuesday night, Trump was overheard saying that he believed the memo should be released “100 percent.”)
Schiff, meanwhile, has a competing memo that purportedly disputes almost all aspects of Nunes’ memo, but for equally complicated reasons his won’t be released, meaning that Nunes’ claims will, when they’re made public, be all but undisputed publicly. All of the controversy appears to have something to do with the FBI and the Justice Department’s investigation into the Trump campaign—and perhaps the presidency—and, in response, Nunes’s committee majority has informed the minority Democrats that it has now launched an amorphous and ill-defined investigation into both the department and the bureau.
Then there was the last-minute announcement from the White House, on Monday night, that they would not enforce a new round of sanctions against Russia—sanctions required by Congress, which overwhelmingly passed the legislation—and also whiffed on creating a list of targeted Russia business leaders, cribbing a list of the country’s richest from Forbes magazine instead.
And don’t forget the week in the life of Andy McCabe.
First came news that FBI director Chris Wray threatened to resign if pressured to fire deputy director McCabe, a longtime Twitter target of Trump, and then the bombshell that McCabe—a longtime veteran of the FBI and a career nonpartisan law-enforcement agent—was asked directly by President Trump who he voted for (McCabe’s answer: He didn’t vote), and that Trump, separately, also berated McCabe in a telephone call and gratuitously insulted his wife. (McCabe’s answer: “OK, sir.”)
McCabe announced his retirement early Monday, perhaps because the Justice Department inspector general is questioning whether he tried to abide by the Justice Department’s own guidelines on investigating politically sensitive matters close to an election by slowing the examination of Anthony Weiner’s laptop in the weeks before the 2016 presidential election.
If you’re confused about how the GOP could be criticizing McCabe for appearing to aid Hillary Clinton’s campaign when deputy attorney general Rod Rosenstein’s memo accusing Jim Comey and the FBI of treating her unfairly was the purported basis for his firing by Trump last May, well, you’re not alone—this investigation increasingly appears to be taking America through the looking glass.
The Nunes memo is particularly significant because it appears to target Rosenstein, a Trump appointee who now controls the strings of Mueller’s investigation at the Justice Department.
Following Jeff Sessions’ recusal from Russia-related matters, Rosenstein—a career prosecutor who was originally appointed as a US Attorney by George W. Bush—appointed Mueller as a “special counsel” using special Justice Department regulations, known as 28 C.F.R. § 600.4-600.10, that were implemented after the Independent Counsel Act expired following Bill Clinton’s presidency. The Independent Counsel Act, the law that spawned Ken Starr, was seen as too independent and unaccountable.
The special counsel rules bring the investigators under closer supervision by the Justice Department—but still narrowly limit the ways and criteria by which a special counsel can be removed. Rosenstein could only remove Mueller for “misconduct, dereliction of duty, incapacity, conflict of interest,” or “other good cause,” and there’s no sign that Rosenstein believes any of that is likely; last month he specifically defended Mueller’s investigation thus far and said he believes Mueller “is running his office appropriately.”
Rosenstein—who signed the increasingly infamous memo last spring arguing that Comey had compromised the FBI’s reputation with the Clinton email investigation and had to be fired so that the bureau could be rebuilt—understands that this document appeared to undermine his own integrity, and that his reputation is now inexorably linked with defending Mueller’s probe and independence.
Given the Republican, Trump-appointed Rosenstein’s reluctance to act to remove Mueller—himself a registered Republican who served all three of the most recent GOP presidents for almost every day of the 20 years of their administrations—there are increasing signs that the Trump administration might be moving toward smearing Rosenstein’s reputation or ousting him directly.
How exactly they can accomplish that—and just which Justice Department official is willing to add his or her name to the history books to stand alongside Robert Bork, the executioner in Nixon’s “Saturday Night Massacre”—is unclear.
Likewise, it’s not entirely clear how much firing Mueller would affect the probe, which has been underway for more than a year now—it was launched in the midst of the 2016 presidential campaign—and has already resulted in guilty pleas or charges against the president’s former campaign chairman, the White House national security adviser, and two other aides.
But given the turmoil and tumult in Washington, it doesn’t mean that Trump won’t try.
So what would firing Mueller look like?
By all accounts, Donald Trump is within his presidential prerogatives to order the firing of Mueller—but it wouldn’t necessarily be easy. If Rosenstein refuses a direct order from Trump to fire Mueller and is fired or resigns instead, the task would fall to Rachel Brand, the No. 3 official at Justice, who would face the same dilemma—fire Mueller or leave office. And on down the line until Trump finds someone willing to do his bidding.
Certainly every person in that Justice Department hierarchy has already spent time thinking through what would happen if he or she got the phone call ordering a firing. They have all certainly played out various scenarios, and perhaps even discussed with staffs about where their red lines would be and what action they would take in such a historic moment.
The reports last week that White House counsel Donald McGahn threatened to resign rather than implement Trump’s order to fire Mueller make it inexorably more difficult for anyone to give the order now. The news that McGahn told the President that he’d resign gives any Justice Department official ordered to fire Mueller by the White House the knowledge that none other than the White House’s top lawyer suspects there might be corrupt intent behind such a directive—meaning that it is tantamount to obstruction of justice and, by definition, unlawful. Such knowledge makes it much harder to be willing to be the one who signs the letter firing the special counsel, who despite all the partisan political muddying of the waters is a legend inside “Main Justice” and seen by effectively everyone outside of the GOP fever swamp as an apolitical straight arrow.
And the Justice Department has a much deeper bench now than it did in the Nixon days.
Most people don’t realize that during Watergate, in the midst of the Saturday Night Massacre, Robert Bork—as solicitor general, the No. 3 official, who became acting attorney general after the resignation of attorney general Elliot Richardson and deputy attorney general William Ruckelshaus—was actually pressured by Richardson and Ruckelshaus to do Nixon’s bidding and fire special prosecutor Archibald Cox. At the time, the Justice Department’s line of succession was only three deep: If Bork resigned too, it wasn’t clear who would lead the department, and Richardson feared outright chaos.
Today, though, there are no such concerns. The line of succession is effectively infinite—though it’s complicated by how few Senate-confirmed officials are in place at the department right now. Thus each official, in turn, could decide solely based on his or her conscience and how he or she wants to be viewed by history.
Weighing on whomever was forced to make the decision to fire Mueller is a pile of evidence that didn’t exist last summer when McGahn’s dramatic showdown played out without the public’s knowledge: Mueller’s investigation, through the guilty pleas of George Papadopoulos and Michael Flynn, has established clear evidence of contacts between Russian officials and Trump campaign aides—thereby establishing that his case is not, as the president has labeled it, a capitalized “Witch Hunt.”
Trump could also try two other, more direct paths to forestall the investigation, each of which would be tremendously controversial in its own way: He could invoke his own Article II powers as president to attempt to fire Mueller directly—which would almost certainly get disputed in court, since the special counsel regulations grant the firing power exclusively to the attorney general or acting attorney general. He could also attempt to pardon all the targets of Mueller’s investigation. Such pardons, though, wouldn’t stop state or local prosecutors from pursuing their own charges—and, indeed, Mueller’s team appears to be leaving bread crumbs in their case work for just such investigations—and it wouldn’t stop Mueller from writing a report that could be handed over to the Justice Department to be turned over to Congress for public debate and possible impeachment proceedings.
Either move—a direct firing or public pardons—would likely also ignite a political firestorm in Washington, though there’s little evidence that a red line exists among Republicans on Capitol Hill that they won’t let Trump barge right past. However, with a narrow one-vote majority in the Senate and midterm elections approaching quickly, Republicans can’t afford to lose much ground without paralyzing their Capitol Hill agenda for this year and risking their congressional majorities in November.
Trump’s best path to ridding himself of the meddlesome FBI director and slowly reining in the investigation might come instead from removing Rosenstein or Sessions and appointing a new deputy attorney general or attorney general.
Rosenstein is overseeing the case—serving as the acting attorney general in the Russia matter—because Jeff Sessions himself is a a potential target of the investigation, having met secretly with Russian ambassador Sergey Kislyak during the campaign and then conveniently forgetting about those encounters during his confirmation process. If Sessions resigns, the next attorney general—presuming he or she is also not compromised by the Russia investigation—would be able to take control of the investigation back from Rosenstein and either fire Mueller or box in his investigation. Similarly, a replacement for Rosenstein might be more compliant to Trump’s wishes too. It is not widely understood that Mueller’s team has to keep Rosenstein, as acting attorney general, in the loop and ask permission for each additional investigative avenue it wants to pursue.
Regardless, though, the removal of Mueller wouldn’t necessarily stop the case in its tracks. Whoever was responsible for that firing could appoint another special counsel, for one thing; it was, in fact, the work of Archibald Cox’s successor, Leon Jaworski, that led to some of the most significant court findings in the Watergate scandal.
Even if there was no successor forthcoming, the case and investigation could and probably would continue on its own as a regular FBI inquiry.
Starting an investigation at the FBI is a formal process, requiring agents to demonstrate evidence of a criminal predicate to move to what’s known as a “full field” investigation, and, similarly, closing an investigation requires a formal decision to “decline” charges. The “Mueller probe” isn’t actually a single case; at this point there are multiple independent investigations underway, including into Paul Manafort and Rick Gates’ former business dealings, into the campaign’s separate dealings with Russian officials, and into possible obstruction of justice around Jim Comey’s firing.
Some of those cases were well underway before Mueller took over—it was, in fact, the early work of investigators that led to the guilty pleas last fall of George Papadopoulos and Michael Flynn—and others have been launched since. All would and could continue without him. Without Mueller, the assigned FBI agents would return to the Washington Field Office and the prosecution would be placed, most likely, under the supervision of either the US attorney in DC or the Eastern District of Virginia, where the court cases are already playing out.
Perhaps the key lesson of Mueller’s investigation thus far has been that at every step, Mueller and his investigative dream team have known more and been further ahead in their process than the public anticipated or realized. At every stage, Mueller has surprised the public and witnesses before him with his depth of knowledge and detail—and he shocked the public with news last fall that Papadopoulos had been arrested, been cooperating, and pleaded guilty, all without a single hint of a leak. The news last week that Comey himself had testified before Mueller’s team weeks earlier continues the pattern that even amid the most scrutinized investigation in history, Mueller is moving methodically forward, with cards up his sleeve to play.
There’s no reason to believe, in fact, that Mueller—who has surrounded himself with some of the most thoughtful minds of the Justice Department, including Michael Dreeban, arguably the country’s top appellate lawyer, whose career has focused on looking down the road at how cases might play out months or even years later—hasn’t been organizing his investigation since day one with the expectation that he’d someday be fired and worked to ensure that this, his final chapter in a lifetime of public service at the Justice Department, won’t be curtailed before it has gotten to what Mueller calls “ground truth.”
A quarter century ago, when Mueller first ended up in Washington as the assistant attorney general for the Justice Department’s criminal division during the George H.W. Bush administration, his aide David Margolis—a lifelong Justice Department official who came to be seen as Main Justice’s conscience until his death in 2016 after more than 50 years of service—cautioned Mueller to pick and choose his battles. If he didn’t, Margolis warned, Mueller would get chewed up by the partisan and bureaucratic bickering of the capitol. Mueller, thinking back to those days in the jungles of Vietnam, fixed Margolis with an icy stare that would become all too familiar to a generation of prosecutors and FBI agents. He replied, “I don’t bruise easily.”
In the 25 years since, including 12 years atop the FBI, Mueller has given no indication that he’s changed. And even today as special counsel, he’s still likely getting more sleep than he did in Vietnam.