Trump’s Mueller Scheming Will Fail

Updated:
Posted in: Politics

On Wednesday, July 19, 2017, President Donald Trump gave an extraordinary interview to the New York Times. The biggest headline was Trump’s displeasure with his attorney general, Jeff Sessions, who he believes should not have recused himself from the federal government’s ongoing investigation of the influence of Russia on the 2016 presidential election, and whether there was any collusion between the Trump campaign and Russian hackers trying to manipulate the results to favor Trump. (Also striking, Trump’s lack of preparation resulted in him making too many serious errors, mistakes that would embarrass most presidents but not one who feels no shame.)

Sessions, in announcing his withdrawal, said he was acting on the advice of the Justice Department’s ethics lawyers. More specifically, the attorney general testified in June 2017, “I recused myself not because of any asserted wrongdoing on my part during the campaign,” he explained. “But because a Department of Justice regulation, 28 CFR 45.2, required it.” He added, “That regulation states, in effect, that department employees should not participate in investigations of a campaign if they have served as a campaign advisor.” In short, it is a long-standing rule that guides the Justice Department.

Surely Trump knows this, for it was widely reported, so he was telling the New York Times he was angry with Sessions for following the Justice Depart rule because it resulted in the deputy attorney general, Rod Rosenstein, appointing special counsel Robert Mueller, after the president fired FBI director James Comey. In Trump’s thinking, apparently, if Sessions had not recused himself there would be no special counsel Mueller investigating possible ties between the Trump campaign and Russia. Trump—a man who is conspicuously manipulative and anything but subtle—in his interview thus reveals that he is deeply concerned about the Mueller investigation.

For anyone who has followed the Russian connection to the Trump campaign and presidency—here is an excellent running list of connections—the New York Times interview was something of an indication that things are happening that make Trump unhappy, and Trump is beginning to feel the investigation closing in on him. Given the way he has handled these matters in the past, he now appears worried. So in the interview, he went after Mueller, claiming the special counsel had conflicts of interest so he should not be investigating Trump. Here is how the Times summarized the attack:

Mr. Trump said Mr. Mueller was running an office rife with conflicts of interest and warned investigators against delving into matters too far afield from Russia. Mr. Trump never said he would order the Justice Department to fire Mr. Mueller, nor would he outline circumstances under which he might do so. But he left open the possibility as he expressed deep grievance over an investigation that has taken a political toll in the six months since he took office. Asked if Mr. Mueller’s investigation would cross a red line if it expanded to look at his family’s finances beyond any relationship to Russia, Mr. Trump said, “I would say yes.” He would not say what he would do about it. “I think that’s a violation. Look, this is about Russia.”

Going after Sessions and then Mueller is extraordinary. But we all now know this is standard operating procedure for Donald Trump, who is always on offense as his primary defensive tactic. For that reason, it was no surprise when the Washington Post published a follow up story on July 20, 2017, clearly based on well-placed sources within the Trump camp, as confirming the attacks by Trump.

The Post headline was not subtle: “Trump team seeks to control, block Mueller’s Russia investigation.” Nor the opening paragraph: “Some of President Trump’s lawyers are exploring ways to limit or undercut special counsel Robert S. Mueller III’s Russia investigation, building a case against what they allege are his conflicts of interest and discussing the president’s authority to grant pardons, according to people familiar with the effort.”

Tucked into the Post story was a confirmation that Trump’s attack on Attorney General Sessions from the day before had been designed to force him to volunteer his resignation. The Post reported, “Several senior [Trump] aides were described as ‘stunned’ when Sessions announced Thursday morning he would stay on at the Justice Department.” And the story reported that the recently hired spokesperson for Trump’s team of outside lawyers, Mark Corallo, had resigned. And the more recently hired legal-crisis manager, Ty Cobb, who would not be on the job formally until the end of July, had nonetheless tried to organize a meeting to coordinate what was being said, while Trump was running around unbeknownst to them all attacking his attorney general in the New York Times. Clearly, chaos and turmoil are the hallmarks of Trump’s legal operation.

I have paused to note these stories because I believe they are markers, so allow me to offer a little prognostication. These stories reveal a worried president for not only does he know that he is in trouble but he has put his family in trouble as well: Donald Jr., Ivanka, and Jared Kushner. He could care less about the staffers he has placed in jeopardy, they are only useful to him so long as they protect him. So here are a few Questions and Answers these stories provoked in my mind:

Question: Was the attack on Sessions undertaken to get him to resign, and if yes, why?

Answer: Given the reaction of his senior aides, who may have learned of the president’s thinking after the fact, Trump clearly hoped to get Sessions to leave the Justice Department. Trump probably thinks he can find someone he can control, who will fire Mueller should he get close to information that will truly endanger the president or his family. (Trump seems to think he has an FBI director in Christopher Wray whom he can control, and that is true, Wray did a wonderful job of snowing the Senate Judiciary Committee at his confirmation hearing. We will see on Wray.) But if Sessions leaves the post of attorney general, Trump will never get a puppet through the confirmation proceedings. Nixon tried such a ploy, but the Senate Judiciary Committee put so many strings on Nixon’s nominee, Elliot Richardson, that if he had fired Watergate Special Prosecutor Archibald Cox, it would have ended not only his public career but his private career as well. If Sessions leaves there are enough Republicans in the Senate who are troubled by Trump to strengthen the position of special counsel Mueller, not weaken the post.

Question: Can Trump build a “conflict of interest” case against Mueller and his staff, which would provide a basis to fire him and them?

Answer: Very, very, doubtful. Unlike Trump and his team, Mueller and his team are experienced government officials, who have decades of public service and who know the rules as well as they do their children. The reported conflicts Trump has gathered are weak, and most are not true conflicts, like the fact that some attorneys working for Mueller have made contributions to Hillary’s campaign. That is not a conflict of interest rather a First Amendment right. Others purportedly worked at law firms that might have been involved with litigation or clients that create a conflict for them to now investigate Trump, but you can be sure that was checked closely and completely before Mueller hired them. Another conflict Trump has suggested to friends is that Mueller wanted the job of FBI director, and Trump did not offer it but that is not a conflict of interest. The Post reports the Trump teams are digging into a claim that Mueller left a Trump Country Club after some disagreement about his membership, but Mueller has denied this claim.

Question: On what basis can the special counsel be removed? And can Trump really fire Mueller?

Answer: Unlike the special prosecutor created during Watergate, the special counsel was appointed pursuant to Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations, which addressed some of the earlier problems. For example, he can only be removed by personal action of the Attorney General (and since Sessions is recused, Deputy Attorney General Rosenstein). 28 CFR 600.7 states: “The 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. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.” Unlike the summary firing of Archibald Cox by Nixon, to remove Mueller or any of his staff would require an investigation and proceeding by the Department of Justice, and would be subject to appeal in federal court. Indeed, these regulations were written to make it difficult to remove a special counsel, and I seriously doubt Trump can succeed. These regulations would have to be nullified by Trump, but I have little doubt Mueller could and would litigate that action, and prevail in federal court because a president cannot remove due process to accomplish his goal of removing the special counsel. Nor with a special counsel as experienced and careful as Mueller, can he exercise any control over the investigation.

I have not mentioned the potential of any of Trump action against the special counsel provoking an impeachment proceeding by Congress because I do not believe Republicans will, under any circumstances, including Trump shooting someone on 5th Avenue, undertake to impeach and remove Trump. They are spineless, and have placed party before country. But institutions like the Justice Department and the federal judiciary have not yet been corrupted by the Republicans, and they remain the check on this out-of-bounds president.

Posted in: Politics

Tags: Ethics, Legal, Politics

  • GumbaJ

    Trump does what he wants, whether or not it works out for him is another story, ie, a complete Muslim ban. He just made Anthony Scaramucci Communications Director much to the complete dismay and objections by Sean Spicer, Reince Priebus, and Steve Bannon. Spicer resigns in August because of the decision. It really makes me wonder if Trump will “try” to fire Sessions and then Mueller by directing his new Attorney General to do so. Trump is bullheaded when people tell him not to do something. He wants to do it more just to prove to himself that he’s the boss. He may “try” to get his way with the intent of slowing the investigation. With Scaramucci in his new role, the White House once again resonates, WIN, WIN, WIN!

    • Donald Holland

      Trump is a White Obama.

      • WOrkingTaxpayer

        You are what?

    • WOrkingTaxpayer

      TWIT…there are 47 MUSLIMS nations…get the facts you prove you voided the Mandatory Education Nation laws…and process or you are a product of the reward em all a trophy for perhaps showing up once in a while..National Disgrace..

  • Michael Mortimer, Esq.

    Absolutely superb article Mr. Dean. I have forwarded a link to it on Twitter.

  • concreteblue

    ” They are spineless, and have placed party before country.”
    Yes. But missing Historical context. It happened around 1980 or so….

    • It happened in 1968 when still-unelected candidate Nixon sabotaged the Paris Peace Talks, and Republicans in Congress, having learned of this, decided to do nothing about it. (Recall from discussions during this recent election and 2000’s that Congress has power to intervene.)

  • firstwife

    Thank you, thank you, thank you, John Dean. I have been a huge fan since watching you during the Watergate hearings. I am heartened to hear your thoughtful and insightful look at these issues, as you know what you speak of. I will continue to follow your writings and share this. Thank you again for all you’ve done for our country!

  • Grounds for hope? Not sure if this column should make me feel so positive, especially considering the conclusion. John Dean thinks impeachment is unlikely (due to purely partisan factors), but maybe he believes #PresidentTweety will be neutered in place when enough of the truth is revealed?

  • dianaleavengood

    This article is comforting. Share it far and wide.

  • Rivegauche610

    No one more qualified to comment on this than Mr. Dean. Here is a new “cancer on the presidency” to eradicate.

  • GEHoeflinger

    But institutions like the Justice Department and the federal judiciary
    have not yet been corrupted by the Republicans, and they remain the
    check on this out-of-bounds president….

    Laudatory, but incorrect. the Judiciary has already been infiltrated by Republican appointees who put ideology above law almost any day.

    The Republicans are still smarting that Robert Bork who fired Archibald Cox was never elevated to the Supreme Court. They want revenge and stealing the seat that Gorsch occupies is just the beginning.

  • Jan B. Hamilton

    Who will join me in a class action suit alleging violation of the 15th Amendment to the US Constitution. My vote was manipulated, subjected to fraud, perjury, treason, exploitation of an elderly DC Citizen previously from Colorado? Will “the system” enforce, 18 USC 249, the 2009 Hate Crimes Act, passed by the US Senate and House, signed by the President. I am alleging that this law is not being enforced by the Judicial Branch of the Government. I believe that God loves all the same, gay and straight. An elder homophobic judge in Aspen, Co. James B. Boyd, is still holding my habeas corpus petitions filed in June of 2015. I was mandated to undergo “Conversion Therapy” to be cured or be arrested. I spent over 2 years in jail awating trial on a $300,000.00 cash only bond. The arrest at my church was the first of my life at age 65. My plea to the US Supreme Court was denied due to Rule 39.8. John Jay the first Justice of the US Supreme is my maternal grandfather. Who will provide Equal Justice Under Law of the US Constitution? Who will organize a class action lawsuit against the President? Our individual freedoms, of the 1st, 2nd, 4th, 5th, 6th, 8th, 13th 15th amendments to the US Constitution are violated. “Give me liberty or give me death” Patrick Henry.

    • WOrkingTaxpayer

      Puke!

  • May3rd2016

    My, my.

    Now we know why Dean stabbed Nixon in the back.
    He always was a hyper-partisan DEMOCRAT !

    The Republicans WILL take down Trump IF something significant is found.
    UNLIKE what the Democrats did with Clinton or Obama.
    The Democrats ALWAYS defend their own kind.
    No matter how corrupt.

    Media Matters is looking for new writers Dean.
    You would fit right in with David Brock.

    • Samy

      Jealous partisan hater – go elsewhere, anarchist.

      • You’re just feeding the troll. He might be sincerely stupid or proudly ignorant, but I suspect they must be paid to fake it. If so, then it is quite plausible that Putin or the Koch brothers give them incentive bonuses when they get people to chase after their BS. There is NO chance of an intelligent dialog when their only intention is to destroy reasoned discussion.

    • WOrkingTaxpayer

      As if the three nations having armed ICBM’s at the USA…won’t take place first…due to those whom RUSSIA RUSSIA RUSSIA no evidence obsessed…VOID as if the NUKES won’t touch em…amazingll

  • Frank Willa

    Mr. Dean, thank you for your continuing analysis of the Trump response to the Russia interference in our election. In my view the conflict of interest attack to remove Mueller is about the only straw that is out there, and not a likely result. I wanted to use this platform to respond and express my view to something that I saw the other night on PBS where two attorneys were discussing the obstruction of justice topic. One suggested that Trump’s knowledge of the obstruction law was so rudimentary that he might “escape” because he could not form the requisite specific intent to be charged; I was stunned. How could someone that is a college graduate, and now President, be so unsophisticated? I would assume that Trump watched the news around the time of the Comey dismissal and all of the discussion regarding obstruction of justice. Would not all of the attorneys that he consults with also discussed the topic with him? In my view he is simply acting as the authoritarian and deciding to try to bully his way through his difficulty, no matter what he has been advised. Should he dismiss Mueller, it is more of the authoritarian “take over” approach that seems to drive his behavior.

    • WOrkingTaxpayer

      Ditto to the former 8 yr community etc from Kenya and Schumer…and Brennan…get real people…if you want socialistic communistic go to Venezuela a lot of room because the Real people are fleeing by the millions..just like Cuba…

  • Kelly Moore

    Sanity in 14 paragraphs. Thank you!

    And may I add that Mr. Mueller is a rock star.

    • WOrkingTaxpayer

      Kelly could you include some examples..of the best bud of Comey…no can prosecute…Clintonistas…Global Extortion Initiative… If any of you are laws students..start finding someone to pass the bar exam…

  • JNagarya

    Thanks, John. You’re one of the few who knows this stuff — and intimately — and helps clarify, and even in some circumstances, helps calm the panic.
    Agreed on the Republicans, though I still hold out hope: they have an “invisible” Party opposition in Republican governors, and other Republicans concerned with re-election.

  • Evie Vincent

    The President is using a familiar refrain taken from his playbook – read Judge Gonzalo
    Curiel – to poison the well. This allows conservative media to create a narrative
    for his base, which bounces through the echo chamber to preemptively discredit
    any findings.

    • WOrkingTaxpayer

      The Ditto machine media…pre scripted for the former WH occupants and dedicated socialist marxist, communist Muslims…et al…calibrated syconicity…

  • thewhitetiger

    If Rs will not impeach under any circumstances, and Trump cannot remove Mueller without a challenge in the courts, but Mueller finds evidence for RICO charges at state level, what happens to that information? Does the Congress keep it secret? Does someone, a D of course, leak it and NY State take it up?

    “Oh what a tangled web we make/When first we practice to deceive.”

  • (((McDougly)))

    Great article Mr. Dean……….Thank You.

  • Ernie Hinrichsen

    As usual, Mr Dean, has accurately and concisely summed up the current situation. I’m not as sanguine as he that the investigations will not be halted, illegally or otherwise, by Trump. The same Republicans whom Mr. Dean credits with not having the will to impeach will likewise not have the will to stop Trump in any future extra constitutional or extra judicial mischief he chooses to engage in. That said, I have nothing but respect for John Dean and his legal and moral acumen and hope with my entire being he is correct.

  • Bisexual Visibility

    I have literally said the same thing about the GOP refusing to Impeach even if 45 shot someone in the street myself! Perfect summarization 👌

  • Matt

    I have long lost what little respect I ever had for Republicans. They are spineless, gutless, without any moral scruples. They actively hate the country and the government, that is why they are eagerly supporting this abomination of a president. Their disgust of the freedoms of democracy is why they they are supporting an aspiring fascist. Trump supporters are unwittingly supporting someone who hates them.

    • H.P. Lovecraft (writing in 1936): “As for the Republicans — how can one regard seriously a frightened, greedy, nostalgic huddle of tradesmen and lucky idlers who shut their eyes to history and science, steel their emotions against decent human sympathy, cling to sordid and provincial ideals exalting sheer acquisitiveness and condoning artificial hardship for the non-materially-shrewd, dwell smugly and sentimentally in a distorted dream-cosmos of outmoded phrases and principles and attitudes…, and revel in (consciously or unconsciously) mendacious assumptions… utterly contrary to fact and without the slightest foundation in human experience? Intellectually, the Republican idea deserves the tolerance and respect one gives to the dead.”
           [There’s a T-shirt!]

  • 8thgenerationamerican

    Thank you Mr. Dean for yet another excellent and well reasoned analysis! I wish you would elaborate on how the naked authoritarianism so evident in the GOP and most of its Senators and members of Congress is evolving into a potentially fascist party. In your book Conservatives Without Conscience you raised this specter and now it has come to pass. What needs to be done to stop them before they engage in some sort of destabilizing power grab?

  • WOrkingTaxpayer

    So a Prez cannot fire anyone according to the Dems/Libs/Left: and a Pres who does…well…the Dems Libs Left must attack especially((like they did Reagan especially Traitwhore Thank GOD Dead Ted who worked directly with the Russias which the coward Ditto Machine pre scripted media VOIDED then as they do now with the prior 8 yr Reign of Terror US Constitution Usurped) when the same are pure unadulterated Socialist- COmmunistas who live to love to destroy that which Real Americans have contributed with blood, sweat, tears and expecting nothing more than what we and our Ancestral Heritage Contributed…Yet, the frauds in both parties…couldn’t care less that we have THREE nations extremist…aiming armed Nukes at our soil… PS And the fact that Mueller and Comey are best buddies makes no matter now does it! Sorta like a judge receiving a little on the side…to adjust a ruling… PSS So Comey changing the verbage for Clintonistas…et al Global Criminal Initiatives as Sec of State…PROOF abound, and about everything the prior 8 years of the Kenyan god king(where I visited his overjoyed ancestral home and thrilled all to show me))ISLAMOFASCISTNAZIAnti USA et al should just be NULL & VOIDED… as if Hell on Earth isn’t exposed! Do Unto Others As You WOuld Have Them Do Unto YOU

  • If HPL is a soft spot for you, you’ll probably love hplhs.org … I presume you already have (or can Google) sufficient links for the other soft spot, but if not, feel free to click my ID, find me on an un-PREmoderated thread for a faster exchange, and get/give/trade favorite “blue” news/blog/commentator links.