Last night a Twitter pal speculated that what we might be seeing with Bill Barr’s departure is a sort of “slow-motion Saturday Night Massacre.” We still don’t know why Barr resigned/was fired but it’s been reported that he was “unlikely” to appoint a special counsel to investigate Hunter Biden. Maybe Trump demanded it and Barr told him no, which meant Barr had to go.
Next week the deputy AG, Jeffrey Rosen, will take over for Barr. If Trump makes the same demand of him, does he resign too? That would make Richard Donoghue the new acting AG. What will he do if Trump tells him to appoint a special counsel? Elliott Richardson and William Ruckelshaus quit in a matter of hours when Nixon demanded they fire Archibald Cox, but the Trump version could play out over several weeks. If you believe this AP story, the stars are beginning to align.
There’s one big difference between the Saturday Night Massacre and what Trump’s doing, though: Appointing a special counsel to investigate Hunter Biden would be … quite defensible. Special counsels operate with greater independence than standard DOJ prosecutors do, which is what you’d want when probing the finances of the president’s son. It’s a signal to the public that the matter is being pursued diligently, without fear or favor. It may even be that Biden’s own Attorney General will end up making the appointment himself, to show the public that no special breaks will be given to anyone just because they’re relatives or cronies of the new president. I continue to think Team Joe is secretly *hoping* Trump’s AG appoints a special counsel, as that would take this thorny issue out of their hands and make it easy for rank-and-file Democrats to complain that it’s political persecution, not a justifiable criminal investigation.
Which brings us back to the mystery of why Barr is allegedly opposed to making the appointment. And whether Rosen might be any less opposed.
President Donald Trump is considering pushing to have a special counsel appointed to advance a federal tax investigation into the son of President-elect Joe Biden, setting up a potential showdown with incoming acting attorney general Jeffrey Rosen…
Beyond appointing a special prosecutor to investigate the younger Biden, the sources said Trump is interested in having another special counsel appointed to look into his own baseless claims of election fraud. But if he’s expecting his newly named acting attorney general to go further than Barr on either matter, he could end up quickly disappointed…
Trump is still weighing his options, considering whether to pressure Rosen to make the special counsel appointment or, if needed, to replace the acting attorney general with someone more likely to carry out his wishes. He has even asked his team of lawyers, including personal attorney Rudy Giuliani, to look into whether the president has the power to appoint a special counsel himself.
That first boldfaced part is the “slow-motion Saturday Night Massacre” scenario. The second boldfaced part is what I wrote about over the weekend, the possibility of the president appointing a special counsel directly. Under DOJ regs, only the Attorney General has the power to make the appointment. But under the unitary executive theory of Article II, any power possessed by an executive branch official necessarily derives from the president’s constitutional authority. If Barr or Rosen can make the appointment, by definition Trump can make the appointment. I strongly suspect that’s how a 6-3 conservative SCOTUS would rule.
Which, again, would probably suit Biden’s interests just fine. There’s no “good” outcome to the Hunter prosecution for his administration short of Hunter being cleared by Trump’s DOJ before January 20, which is highly unlikely. If the Justice Department is still looking at Biden once Sleepy Joe takes office, it means Hunter will be either charged and put on trial by his own father’s appointees (bad) or he’ll be cleared by those same appointees (really bad). The most Team Joe can hope for is for Trump to inadvertently discredit the case in the public’s eyes by making it look as shady and partisan as possible. Firing Rosen because he won’t appoint a special counsel would help with that. Having Trump himself appoint the special prosecutor would help a lot.
The one catch for Biden is that, if Trump makes the appointment, he very well might appoint some Fox News clown instead of a legit prosecutor. Probably not — I assume Pat Cipollone would heavily influence the president’s selection — but you never know how POTUS might behave with the clock ticking on his presidency. If he named, say, Jeanine Pirro as special counsel, Biden would then be forced to decide whether to take the extraordinary step of firing her after being sworn in.
Maybe he’d make some sort of deal with Republicans in which he replaced Trump’s dubious appointee with a new special counsel who’s respected by Federalist Society types.
Anyway. You’re probably reading all of that and thinking, “How did we end up talking about firing Attorneys General? Wasn’t Trump supposed to be focused on firing Chris Wray and Gina Haspel during the lame-duck period?” Indeed he was. And he has been, according to NBC. But so far his legal advisors have convinced him to hold off, mainly because Trump has been so transparent about revenge as his motive in wanting to fire them that the White House might end up in legal trouble if he pulls the trigger:
President Donald Trump has come so close to firing FBI Director Christopher Wray in recent months that the White House counsel’s office has warned him not to do so because it could put him in potential legal jeopardy, according to a senior administration official with direct knowledge of the discussion and a U.S. official familiar with the discussion…
Their concern was that firing Wray could be seen as retaliation because the president has publicly pressured him to take specific actions on certain investigations — such as announcing a probe into President-elect Joe Biden’s son — and then expressed frustration that Wray has not followed his suggestions…
The likelihood of Trump firing top officials he’s been frustrated with or feels betrayed by is expected to increase over the holidays, the current and former officials said.
White House lawyers supposedly worried that if Wray were canned after James Comey it might lead people to believe that Trump was imposing a political “loyalty test” on the quasi-independent office of FBI director. Which … is exactly what Trump’s doing, of course, not just with the FBI but with everyone and everything. Every demand he makes of an underling or a Republican politician, no matter how outlandish, is ultimately a loyalty test of some sort. According to Comey, he explicitly asked for “loyalty” at their now famous private dinner in 2017.
The part about him becoming more likely to fire people over the holidays, as he broods during his down time about his election defeat and the people who wronged him, made me laugh because it’s so obviously true. Haspel has reportedly even begun clearing out her office at the CIA in the expectation that she’ll be axed without notice at some point before January 20. Imagine firing the head of foreign intelligence, Haspel, and the head of domestic intelligence, Wray, essentially on a whim because you’re in a bad mood on Christmas or New Year’s Eve. That’s the situation Trump’s aides and the country are facing right now. “I wouldn’t take anything off the table in coming weeks,” said one senior administration official about who might be fired or pardoned as POTUS lashes out on his way to exit. The finale of this gonzo four-year reality show should be action-packed.
Here’s Lindsey Graham making the case today for a special counsel to investigate Hunter Biden. Ultimately I don’t think it’ll matter; Biden won’t nuke his entire “return to norms” message by meddling to extinguish the prosecution of his son even if no special counsel is appointed. Although I wouldn’t rule out a 2024 pardon…
“If you believe a Special Counsel was needed to look at the Trump world regarding Russia, how can you say that there is no need for a Special Counsel regarding Hunter Biden?” — @LindseyGrahamSC pic.twitter.com/2dv9YRGmyF
— Kevin Bishop (@KevinDBishop) December 16, 2020