Constitutional Crisis, Here We Come?

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Via Doyle McManus for the LA Times

President Trump has openly declared war on Robert Mueller, the special counsel investigating the Russian saga. The president clearly wishes he could fire Mueller; his associates say he’s mused about that for weeks. Now, by stepping up the pressure, he’s moving toward a showdown, and a possible constitutional crisis.

There’s plenty of other craziness billowing from the White House: lawyers considering whether the president can pardon himself, the president publicly denouncing his attorney general for failing to protect him. But the clearest portent of a crisis is the president’s increasingly evident desire to be rid of the meddlesome prosecutor, who appears to be doing his job too well.

The trigger: Mueller’s investigators have reportedly begun looking for evidence of Trump family business deals with Russians – deals the president says never existed.

According to the Washington Post, Trump was especially angry about reports that Mueller was seeking his tax returns, documents the president has guarded fiercely even when it was politically risky to do so.

So far, Trump and his growing army of lawyers are attacking Mueller on two fronts.

First, the scope of Mueller’s mandate. Trump told the New York Times that if the special counsel looks into the workings of his family firm, “That’s a violation.”

“The investigation should stay within the confines of Russian meddling in the election,” his spokeswoman, Sarah Huckabee Sanders, explained. “Nothing beyond that.”

That’s an unusually narrow definition of the special counsel’s mandate – unreasonably narrow, in fact. When Deputy Atty. Gen. Rod Rosenstein appointed Mueller as special counsel, he gave Mueller authority to look into “any links and/or coordination between the Russian government and individuals associated with the campaign.” If Trump had business relationships with Russians who could be acting on behalf of Vladimir Putin, that would seem quite relevant.

The nightmare haunting Trump, of course, is the history of past counsels – especially Kenneth Starr, who took an inquest into Bill Clinton’s family finances and turned it into an investigation of sex and perjury.

Back then, Democrats objected to Starr’s expansive definition of his mandate. But he was an independent counsel; Clinton had no power to fire him and never seriously tried to remove him from office. As a special counsel, Mueller is in a different position. Unlike an independent counsel, he reports to the Justice Department. He can’t be fired just because the president is worried about what he might find. But he can be removed if he violates department regulations – which made Trump’s use of the word “violation” intriguing.

Trump also attacked Mueller on another front, one that initially seemed puzzling: the notion that the special counsel is burdened by multiple conflicts of interest.

The day before Mueller was appointed special counsel, Trump interviewed him as a possible director of the FBI, a post he previously held from 2001 to 2013. “He wanted the job,” Trump told the New York Times. “Talk about conflicts.” (Except it’s not clear why that would constitute a conflict.)

“There were many other conflicts that I haven’t said, but I will at some point,” Trump added.

Here’s an exotic one: White House advisors told the Post that Mueller once had a dispute with the Trump National Golf Course near Washington over membership fees.

If that’s the best they can do, they’d better keep looking. But that’s the point: Trump and his aides sound as if they’re looking for any excuse to get rid of Mueller. “Conflict of interest” is also on the list of reasons for which the Justice Department can fire a special counsel, along with “misconduct, dereliction of duty [and] incapacity.”

Trump faces a practical problem if he wants to restrict Mueller’s mandate or fire him outright. He’ll need help from Rosenstein, the Justice Department’s No. 2, who is the special counsel’s immediate supervisor. Last month, Rosenstein told Congress he saw no reason that would justify Mueller’s removal.

If he decides to act, Trump will either need to change Rosenstein’s mind or replace him with someone more tractable. And that would send his presidency straight into another Saturday Night Massacre, the 1973 episode when President Nixon ordered his rebellious underlings to fire a special prosecutor. Watergate analogies have been too casually invoked over the last six months, but they’re looking more relevant by the day.

To head off a presidency-destroying disaster. Republican leaders should warn Trump that if he tries to fire Mueller, the consequences will be dire. But only a few have dared do so in public. Some privately say they don’t think he’d listen. Others, including former House Speaker Newt Gingrich, have been egging Trump on.

The best place for Republicans to take a stand is on Fox News, of course, where they can be sure Trump will hear them – even though he may not understand why they’re not putting his interests before the country’s.