As the deadline to send the president a special counsel report on Russian interference in the 2016 election approaches, Sen. Lindsey Graham (R-S.C.) has threatened to “scare the President away” from firing Robert Mueller, the FBI director now overseeing the Russia investigation, if Mueller’s team recommends Trump fire Deputy Attorney General Rod Rosenstein.
Graham’s growing resolve may be based on two hard-nosed observations. The first is that President Trump has not fired Rosenstein for the sake of scaring the President away.
“If [Trump] were to fire Rod Rosenstein for no other reason than Rod Rosenstein doesn’t want to fire him and causes that to happen, if that were to happen, he would just land a brick on a rocket ship that would take Robert Mueller and Rod Rosenstein both out,” Graham said in October.
The second, perhaps more meaningful, observation is that if Trump were to seek to dismiss Rosenstein and ultimately fire Mueller, it would mean that Trump’s nominee for Justice Department head, Matthew Whitaker, would become acting attorney general. Whitaker was Whitaker’s boss when Whitaker worked at the Justice Department for Sessions.
The obvious distinction is that Whitaker was the acting assistant attorney general for the Justice Department’s Civil Division, while Mueller was in charge of DOJ’s Criminal Division and is now heading Mueller’s investigation.
With that in mind, some might argue that Whitaker could take control of the entire Russia investigation as Mueller’s deputy, and possibly cancel a grand jury subpoena issued by the U.S. District Court in Washington if Trump fired Sessions or anyone else associated with the Russia investigation.
That goes to the heart of the matter. Is the federal investigation into Russian meddling in the 2016 presidential election a distraction to Trump? Whitaker won’t even remotely acknowledge there is a Russia investigation, and Trump is not publicly responding to Whitaker’s elevation to acting attorney general. But in the private world of politics, Republicans are paying attention to Whitaker, while Democrats are paying attention to the president.
What would happen in an 18-month or longer investigation if Trump, ever, seeks to fire Mueller? First, Mueller is viewed as an independent professional who shouldn’t have to fear a Trump firing if he were to conclude, for example, that Trump conspired with Russians to interfere in the election. Secondly, if the president fired Mueller but held onto Whitaker, Whitaker might well suspend the Russia investigation and order his deputies to pursue the entire investigation without getting outside advice or direction.
Once the investigation resumes, it would be open season on Trump, and the investigation would no longer be about the election but about Trump, his campaign, his business ties and his decision to fire Comey, his first FBI director, in May 2017.
Of course, Trump has no intention of doing that. And the entire process would be an unmitigated disaster.
It would take Whitaker more than a month to grant Mueller’s subpoena to obtain the documents and to review them before he would fire Mueller. Whitaker could always backtrack and assert that an actual firing would require Mueller to submit to Whitaker’s review. But Whitaker’s only hope is for Mueller to publish a report that completely exonerates Trump, which would mean Mueller had written a five-year, 10,000-page “reckoning” report that Mueller and his top team of prosecutors couldn’t possibly meet in seven months.
It is a long shot, but even that is conceivable if Trump launches an all-out assault on the Mueller investigation. And why not do it? One must assume that Mueller thinks he has a commanding mandate from the Justice Department to uncover the truth — which, in this case, has long been the Republicans’ mission. Mueller is going to come out with a report — and if a special counsel report does, in fact, identify criminal wrongdoing, it’s hard to see the special counsel’s investigation ending.
I have no idea whether Mueller can get rid of Whitaker and still protect his probe.
I do know that if Whitaker steps in and proves to be reckless, malicious and unpredictable, the president will be back to trying to dismiss Mueller because the president has been told — and demanded — by Trump that Mueller is going to find something, and then be fired to make it all go away.
“I’ll take the pain,” he will say, “if it means I will stop the Russia investigation.”