According to this view, Mr. Trump must convince Rod Rosenstein, the acting attorney general, to fire Mr. Mueller. If Mr. Rosenstein refuses, Mr. Trump can fire him and replace him with someone willing to do the dirty work. Alternatively, the president could order Attorney General Jeff Sessions, who has recused himself from the Mueller probe, to rescind the regulations, which date back to 1999, and then fire Mr. Mueller.
But this narrow view of the president’s options rests on a misunderstanding of basic constitutional principles. Ever since the founding, presidents, Congresses and the Supreme Court have recognized that the chief executive has constitutional power to remove executive officers. As James Madison noted in 1789: “Is the power of displacing an executive power? I conceive that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” In Myers v. U.S. (1926), the Supreme Court observed “it was natural, therefore, for those who framed our Constitution to regard the words ‘executive power’ as including” the power to remove executive officers.
A regulation issued by the Justice Department should not be read to limit the president’s constitutional power to remove officers. Otherwise, a mere cabinet officer could prevent future presidents from exercising the constitutional authorities of their office. The chief executive commands the attorney general, not the other way around.