A leftover from yesterday as the news cycle begins to grind to a halt for Christmas. I think this is closer to true than it is to false, although Mueller doesn’t strike me as the sort of guy who’ll cut Trump a break just because his team’s impartiality has taken some hits lately. Yes, he’s worried enough about public perception that he’d send Peter Strzok packing from the Russiagate probe over his texts with Lisa Page. But after many months of investigating the president, with the eyes of the world upon him, does Dershowitz really think law-and-order Bob Mueller would table an obstruction indictment against the president if it’s a “close call” just because he fears appearing “biased”? I give him more credit than that.
Still, Dershowitz is right in this sense: How would firing Mueller help Trump at this point? We went over this the other day. If Mueller goes, a new special counsel (or a career prosecutor at the DOJ) will take over the investigation. If the replacement turns around and indicts Trump, now Trump’s really screwed. He ousted Mueller in favor of someone supposedly less partial, only to have the new impartial prosecutor validate Mueller’s investigation. If instead the replacement turns around and shuts down the probe or clears the president, the entire Democratic Party and a heaping helping of independents will screech that Mueller would have indicted Trump and the president is now skating free only because he interfered with the investigation by making it possible for a crony to take over. Whichever outcome it is, Trump will look less legitimate than he would have if he’d just played out the string with Mueller and waited for a verdict. If Mueller clears him, it’s a grand slam, total vindication by a respected prosecutor whom even Democrats support. There’s no such option once Mueller is gone, period.
Meanwhile, if Mueller does end up indicting Trump or giving him a Comey-esque excoriation without filing charges in his final report, Trump will be able to point to Strzok, the partisan leanings of Mueller’s team, the dubious demand of transition emails from GSA, and various other curiosities of the probe to argue that Mueller’s a political hack and his investigation was tainted. The special counsel’s verdict on POTUS is merely round one of this fight; round two is the political battle over whether Trump should pay any price for wrongdoing, which the president is now well positioned to fight because of everything I just mentioned. In that sense Trump does have Mueller where he wants him, either as the ultimate character witness if Mueller ends up vindicating him or as a weakened opponent in the battle for public opinion if he doesn’t. He might as well stick it out and take his chances.
Here’s Dershowitz followed by Mark Warner, the ranking member of the Senate Intel Committee, warning Trump not to fire Mueller or any other high-ranking DOJ employees (hint, hint) as that would provoke a constitutional crisis. He also warns Trump, interestingly, not to issue any pardons, which is a ballsy demand to make about one of the president’s most absolute powers. Sure, a Democratic House could impeach Trump for any reason — and may be planning to — but the balance of judicial precedent on pardons tilts heavily towards the president’s prerogative. Good luck selling the public on impeachment for something which various legal experts would doubtless acknowledge the president has the power to do.