In the early Summer of 1972, burglars were arrested for attempting to wiretap the Democratic Party’s telephones located at the Watergate Hotel in Washington, D.C. The burglars were working on behalf of then-President Richard Nixon’s re-election campaign. Archibald Cox was appointed as Special Counsel to investigate the burglary and attempted wiretap.
Concerned about what Cox might find, President Nixon ordered Attorney General Elliot Richardson to fire Special Prosecutor Cox. Richardson refused and was promptly removed from his position as Attorney General. Deputy Attorney General William Ruckelshaus took Richardson’s place but likewise refused to remove Cox. He was subsequently fired and replaced with Robert Bork who complied with President Nixon’s order to fire Cox.
These events, the Watergate Scandal and the Saturday Night Massacre, are the backdrop for the investigation of possible Russian interference in the 2016 presidential election, as well as possible Russian involvement in the Trump campaign. Robert Mueller, former head of the FBI, was appointed by Deputy Attorney General Robert Rosenstein in May 2017 to lead the investigation. Attorney General Jeff Sessions recused himself from the investigation due to his connections with the Trump campaign.
The president may remove superior officers, or those who serve at the will of the president, without the Senate’s advice or approval.
After a year of various members of staff resigning and later becoming assets to Mueller’s investigation, news surfaced that President Trump had tried to find a way to fire Mueller and end the investigation. Only after White House counsel Donald McGahn threatened to resign did the President stop inquiring about firing Mueller. Slowed but not deterred, President Trump then looked to fire Rod Rosenstein, Mueller’s direct supervisor.
The president may remove superior officers, or those who serve at the will of the president, without the Senate’s advice or approval, as shown in Meyers v. United States. Inferior officers, those whose offices are created by Congress, but are filled by the president or their superior officers, may be removed by a superior officer either at will or under specific circumstances that Congress enumerates when creating the inferior position. This legal doctrine was put to the test during the Watergate Scandal and the Saturday Night Massacre in Nader v. Bork.
By the time the U.S. District Court for the District of Columbia heard Nader v. Bork, Special Prosecutor Cox had been removed and replaced. The D.C. District Court, however, found that the Office of Independent Counsel is an inferior office and is subject to legislative restrictions enacted by Congress. Judge Gesell wrote, “Mr. Cox’s position [as Special Prosecutor] was not made subject to Senate confirmation, nor did Congress legislate to prevent illegal or arbitrary action affecting the independence of the Watergate Special Prosecutor.”
Under the Ethics in Government Act of 1978 Title VI, only the Attorney General can remove a Special Prosecutor, and only then “for extraordinary impropriety, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such special prosecutor’s duties.” This portion of the Ethics in Government Act of 1978 lapsed in 1999 and was later adopted in the Code of Federal Regulations.
Although President Trump may remove Rosenstein and appoint someone more inclined to remove Mueller, doing so may jeopardize his chances at re-election.
According to 28 C.F.R. 600.7(d), “[t]he Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” Deputy Attorney General Rod Rosenstein can only remove Mueller pursuant to this code. Although President Trump may remove Rosenstein and appoint someone more inclined to remove Mueller, doing so may jeopardize his chances at re-election.
Knowing that Mueller and the investigation may still be vulnerable, some members of Congress have pushed for legislation further insulating Mueller from removal. Senator Mark Warner (D-VA) on the Senate Intelligence Committee stated, “[a]ny attempt to remove the Special Counsel, pardon key witnesses, or otherwise interfere in the investigation, would be a gross abuse of power, and all members of Congress, from both parties, have a responsibility to our Constitution and to our country to make that clear immediately.” Representative Charlie Dent (R-PA) felt likewise, saying, “I believe now that this revelation has been made public, that there will be increasing pressure to protect Mueller.” No legislation has yet to pass through Congress, but pressure may continue as the investigation appears to get closer to President Trump.
Meanwhile, President Trump and some Republicans in Congress have tried to question the underlying reason for the investigation itself, specifically, a Foreign Intelligence Surveillance Act (FISA) warrant. Representative Devin Nunes (R-CA) wrote a memo implicating that the warrant, which included provisions to tap telephones of certain Trump campaign staff, was invalid because it came from political opponents of Donald Trump.
The memo states that Christopher Steele, a former British spy, was paid by the Democratic National Committee to investigate connections between the Trump campaign and Russia. Steele produced a dossier showing a connection and it became part of the basis for the FBI to file an application to the Federal Foreign Intelligence Surveillance Court (FISC), seeking permission to wiretap the phone of Trump staffer Carter Page. The memo also claims that the political connections of the dossier were not disclosed to the FISC.
“We didn’t put in every fact, but we put in enough facts to allow the court to judge bias and motive and credibility of the sourcing.”
Since the Nunes memo was released, many have criticized it as being partisan and not telling the whole truth. Matthew Olson, former Attorney General for national security, told the Washington Post that when applying for a FISA warrant, “[w]e didn’t put in every fact, but we put in enough facts to allow the court to judge bias and motive and credibility of the sourcing.” Further, a FISA warrant is only effective for 90 days and can only be renewed by showing new evidence that the warrant is still necessary. The original warrant was filed in October 2016 and continued into the first year of the Trump presidency, showing new evidence was in fact being produced to convince the FISC judges to renew the warrant.
Carter Page, the subject of the FISA warrant, had been investigated in 2013 by the FBI when a Russian diplomat contacted Page and tried to recruit him as an informant. Concerns about his connections to the Kremlin escalated when he went to Moscow in July 2016 while on the Trump campaign. While visiting Moscow, his former workplace with banking company Merrill Lynch, Page stated that Vladimir Putin was stronger and more reliable than President Obama. Carter Page has since left the White House.
In the last paragraph of the memo, Representative Nunes notes that, “[t]he Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok.” George Papadopoulos was an advisor to the Trump campaign who told an Australian diplomat that the Russians had information on Hilary Clinton. The Australian diplomat alerted the FBI to what Papadopoulos had told him. Papadopoulos pled guilty to lying to the FBI and is cooperating with the Russian investigation.
As the Russian investigation continues, the need to maintain an independent investigation will be become key to finding out the extent of Russia’s interference in the election. Our legal system is based on holding all accountable for their actions in a fair and open court. A thorough and unbiased investigation is necessary to achieve that goal. Removing Robert Mueller or Rod Rosenstein will hinder that goal and will only echo the lessons learned from Watergate.