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Rod Rosenstein (AP file photo)
Rod Rosenstein (AP file photo)

A political crisis, not a constitutional one

By Stephen L. Carter
Bloomberg Opinion

When Deputy Attorney General Rod Rosenstein meets President Donald Trump on Thursday, the smart money says the lawyer will be out of a job. And already there are cries that firing Rosenstein would precipitate a constitutional crisis.

With respect, this epithet seems premature. It would do violence to no constitutional values for a president to dismiss an aide who’s talked about removing him from office. Dumping Rosenstein might not be politically astute — Republican leaders have warned the White House against the move, at least before the midterm elections — but an act of presidential foolishness is hardly the same as the Saturday Night Massacre.

Political appointees serve at the pleasure of the president, and Rosenstein is a political appointee. The news media have been abuzz with claims that he discussed having someone wear a wire in Trump’s presence, or perhaps invoking the 25th Amendment to suspend Trump from office. Rosenstein’s denials have evidently failed to satisfy the White House, and small wonder, what with talking heads treating the reports as unquestioned facts rather than unsubstantiated allegations. In such circumstances, it’s hard to imagine any president not giving serious consideration to firing the offender.

Now let’s get to the elephant in the room: Rosenstein, at least technically, is responsible for overseeing Special Counsel Robert Mueller’s investigation of Trump’s 2016 presidential campaign. Actually there isn’t much oversight to be performed, unless Mueller wants more resources or a broader mandate. But one has trouble resisting the sense that Rosenstein’s dismissal, if it occurs, will result in part from Trumpian tantrum: The president doesn’t dare fire Mueller, whose probe by now must surely be causing real worry in the Oval Office. By getting rid of Rosenstein, who chose Mueller in the first place, he would have the satisfaction of … well, of letting off steam.

But a presidential tantrum does not a constitutional crisis make. Lots of presidents have fired appointees they believed were openly undercutting them, as outstanding public servants from Salmon P. Chase to Stanley McChrystal might attest. The Treasury Department ran just fine after Abraham Lincoln sacked the financially astute Chase; U.S. forces in Afghanistan survived Barack Obama’s cashiering of the excellent McChrystal.

Or consider Harry Truman’s decision to rid his Cabinet of Attorney General J. Howard McGrath. McGrath had become an embarrassment after firing Newbold Morris, who was investigating corruption in the federal government generally and the Defense Department in particular. No doubt Truman was right and McGrath wrong; but the president undeniably chose to interfere with his chief law enforcement officer’s prosecutorial discretion. The republic failed to fall.

One might respond that the difference is that Trump prefers less investigation of his administration whereas Truman wanted more. But if the existence of the crisis turns on which way the president leans, then this is the very definition not of a constitutional crisis but of a political one.

The chain of events that came to be known as the Saturday Night Massacre was different. President Richard Nixon was trying to get rid of Archibald Cox, the special prosecutor investigating his 1972 campaign. Nixon fired Attorney General Elliot Richardson and his deputy because they refused an order to dismiss Cox. Solicitor General Robert Bork, the third-ranking official in the Justice Department, finally fired Cox after Richardson advised him not to resign and leave the department leaderless. FBI agents sealed Cox’s offices and files. Nixon seemed to be proclaiming himself above the law. But the court of public opinion turned swiftly against the president. He was forced to allow appointment of a new special prosecutor, Leon Jaworski, who ultimately brought him down.

Trump might devoutly wish that Rosenstein would fire Mueller; almost certainly Trump wishes that Rosenstein had never appointed Mueller. But whatever role that heartfelt desire might play in the president’s decision this week, Mueller’s investigation is pressing ahead, undisturbed by anything other than a constant barrage of Trumpian tweets that the special counsel is wisely ignoring.

Maybe the smart money will turn out to be wrong, and Rosenstein will stick around; Trump, after all, isn’t exactly the most predictable chief executive. Given the heated political moment, dismissing Rosenstein would be a reckless and self-destructive act.

Or maybe the smart money is right. In that event, and if the administration has any sense – by no means a given — the White House will try to shore up the Justice Department by swiftly nominating an individual of unimpeachable independence to the deputy spot, as when the Ford administration chose the widely admired Edward Levi, president of the University of Chicago, as the post-Watergate attorney general.

But if Rosenstein goes, even a glitteringly impressive successor is unlikely to save Trump from political disaster. Republican leaders have reportedly warned the White House that a Rosenstein dismissal might spell doom for Supreme Court nominee Brett Kavanaugh, whose confirmation is hanging by a rapidly fraying thread. Put the House of Representatives aside; the GOP might not even hold onto the Senate. And with both houses of Congress in Democratic hands, Trump’s presidency would effectively be over. He might remain in office, but the remainder of his term would be bogged down in subpoenas, investigations, and refusals to confirm his nominees for almost any office.

As I said: self-destructive.

We don’t know how the meeting is going to turn out. But even should Rosenstein be fired, and even should all those entirely predictable consequences occur, the resultant crisis will be political — not constitutional. Executive authority under the Constitution doesn’t turn on how much Americans happen to like the person in the Oval Office, and a presidential power does not cease to exist because the president who wields it is named Trump.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.

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