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Why the Constitution Will Not Allow Trump to Fire Mueller

There has been much discussion about President Trump firing or otherwise disposing of Special Counsel Robert Mueller.  In fact media headlines have been awash with such speculation, stoking fears that we will soon be facing a constitutional crisis unlike anything seen before in U.S. history.

The New York Times published an article two days ago stating that Trump wanted to fire Mueller in December of last year.  And Trump tweeted this morning that he would have fired Mueller if he had really wanted to (so don’t believe the Times, because they are fake news!)

Many Republican leaders have said that they think any attempt by Trump to get rid of Mueller (and/or Deputy Attorney General Rod Rosenstein) would be a disaster for the president and for the Republican Party.

But one thing that seems to be missing from these discussions is what the United States Constitution would allow the president to do in this situation.

Experts on the Constitution and the presidency say that there are two specific problem areas that would stop Trump from being able to fire Mueller or Rosenstein:

  1. Problem One:  The “take care” clause in Article II, Section 3 of the Constitution which states that the president “shall take care that the laws be faithfully executed.” (Note that this clause does not say “unless he’s the potential defendant” or “unless the president breaks laws himself.”)  In fact the U.S. The Supreme Court has always supported the principle that the president must follow and enforce the laws of the United States.
  2. Problem Two:  The presidential oath of office, which appears in the Constitution.  This oath requires that the president “to the best of his Ability, preserve, protect and defend the Constitution of the United States.”  This oath says the president must follow the Constitution and act in the best interests of the American people, not just for his own personal interests.

If a president violates either of these provisions it would be a clear cause for Congress to impeach him.  And firing Mueller or Rosenstein (clearly acts that have the intent to obstruct justice) would be constitutional violations.

The group Protect Democracy issued a white paper earlier this year that had this to say:

“When the President intervenes in an individual prosecution to influence it for corrupt or self-protective purposes, he violates the Take Care Clause and his oath. He is not preserving, protecting, and defending the Constitution to the best of his ability—indeed, he is undermining it—and he is doing so through involving himself at a level of execution that the Constitution does not contemplate.”

“The articles of impeachment against President Nixon included the allegation that the President interfered with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees. If [Trump] were to interfere with an investigation directed at himself or if he were to order a DOJ investigation or enforcement against a political opponent, that conduct likewise would warrant impeachment proceedings.”

Trump supporters, including those at Fox News, need to be aware that there are very important constitutional principles at work and they should not be criticizing or trying to interfere with the Mueller investigation.

If they are successful, however, in egging Trump on to the point where he does fire Rosenstein and attempt to stop the Mueller investigation it will almost certainly result in the end of the Trump presidency, on firm and irrefutable constitutional grounds.

 

Leo Vidal

I am a lifelong Democrat with a passion for social justice and progressive issues. I have degrees in writing, economics and law from the University of Iowa.

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