Who’s “we,” kemosabe? What’s the over/under on Senate votes to remove Trump if he’s impeached for firing Mueller? Fifty-two, maybe?
Now that I mention it, what’s the over/under on House votes to impeach Trump in the first place? Two hundred ten?
Look on the bright side. Once congressional Republicans whiff on impeachment, Flake’s speeches will be even more maudlin.
We are begging the president not to fire the special counsel. Don't create a constitutional crisis. Congress cannot preempt such a firing. Our only constitutional remedy is after the fact, through impeachment. No one wants that outcome. Mr. President, please don't go there.
— Jeff Flake (@JeffFlake) March 20, 2018
He elaborated in an interview with WaPo:
“If [Trump] fires [Mueller] without cause, how different is that from what Nixon did with the ‘Saturday Night Massacre’?” Flake asked. “He left before impeachment came, but that was the remedy then and that would be the remedy now.”…
“The president needs to be reminded that while there is nothing the House and the Senate can do constitutionally to prevent the president from moving forward, our remedy is on the other side,” Flake said. “And the firing of a special prosecutor without cause will, as Lindsey Graham said, prompt that remedy.”
Senate Majority Leader Mitch McConnell (R-Ky.), meanwhile, told reporters Tuesday that he agrees with “the president’s lawyers that Bob Mueller ought to be allowed to finish his job” and called the former FBI director an “excellent appointment.”
Note the caveat in Flake’s warning: Congress will have to act if Trump has Mueller fired “without cause.” Lindsey Graham mentioned that this morning too in his interview with Hugh Hewitt. Marco Rubio also alluded to it this past weekend. The president can’t fire Mueller without cause. But what does “without cause” mean? Here’s what the DOJ regulations authorizing the dismissal of a special counsel say:
(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. 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 chief complaint about Mueller from Trump and his supporters is that he’s exceeded, or will eventually exceed, his mandate to investigate Russian interference in the 2016 campaign. It’s a fishing expedition or, if you prefer Alan Dershowitz’s metaphor, a “legal colonoscopy.” He can look at Russian dirty tricks, like hacking and propaganda. He can look at possible collusion between Russia and Trump’s campaign. He can look, presumably, at efforts by the president and others to obstruct his own investigation. The further you get from the core concern about Russian campaign meddling, the stronger the case becomes that Mueller’s overstepped his bounds and can therefore be dismissed for “good cause” or “dereliction of duty” or “misconduct” or however you want to categorize exceeding one’s mandate.
For example, what if Mueller inadvertently uncovers some sort of shady financial deal circa 2014 between Trump and a prominent Russian businessman with “ties to the Kremlin” (they all have ties to the Kremlin). It’s not proof of campaign collusion but it does suggest why Moscow might have had a preference for Trump in 2016. Does Mueller charge that or no? If he does and Trump fires him for “good cause” in having exceeded his mandate, how many Senate Republicans are going to quibble with Trump’s judgment about it? If there’s any way to justify Mueller’s dismissal as having been for cause, GOPers will seize it as a reason to support the president. Flake won’t; maybe Graham won’t. But many others, likely including Rubio, will. That’s why some senators are pushing a bill that would allow Mueller to challenge his termination in court. Better that an impartial arbiter like a judge decides what does and doesn’t qualify as “good cause” than leave it to a partisan food fight.
But that bill’s going nowhere right now. Why would it be otherwise? If the GOP passes it, they’ll be restricting their own freedom to maneuver on the impeachment question potentially. Imagine if the bill passed and a court sided with Mueller in determining that he hadn’t been fired for cause. What do Ryan and McConnell do then? To make the thought experiment extra fun, what if the court ruled that Mueller hadn’t been fired for cause *but* that Trump was constitutionally empowered to fire him anyway under the “unitary executive” theory of Article II? What then?
Anyway. Assuming the axe falls on Mueller before the midterms, you’re going to have to twist those red-state Democratic arms awfully hard to get them to vote for impeachment or removal. For fark’s sake, Angus King has a safe seat in Maine and he’s already hedging. What do you think Joe Manchin’s going to do? You’ll never get to 67 votes.