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By Dr. Stephen Schwalbe
Faculty Member, Public Administration, American Military University
For some time, Special Counsel Robert Mueller has been investigating the Trump presidential campaign and Russian meddling in the 2016 presidential election. But an active investigation of a sitting president is a rare occurrence in U.S. history. Of the 12 major investigations by more than 30 special counsels spanning 242 years, only four have involved a sitting president:
- Richard Nixon in the Watergate scandal, 1972
- Ronald Reagan in the Iran-Contra affair, 1985-1987
- Bill Clinton in the Vince Foster suicide, Whitewater and Monica Lewinsky suspected perjury scandals, 1994-1998
- Donald Trump in the Russian involvement in the 2016 Presidential Election
What Work Does a Special Counsel Do?
A special counsel is a reputable lawyer who is usually in private practice. He or she is appointed to investigate and prosecute, if necessary, a case of official wrongdoing in office.
The choice of a special counsel rather than a Justice Department attorney is a matter of authority. Subordinates do not generally investigate their bosses.
The difference between a special counsel and a prosecutor is that no formal charges have been brought against anyone during a special counsel investigation. At the conclusion of an investigation, if it is found that a crime was committed, the special counsel then becomes a special prosecutor. He or she pursues criminal charges and tries for a conviction.
In 1999, Bill Clinton’s Attorney General, Janet Reno, promoted regulations for the future appointment of special counsels. These regulations remain in effect. However, they are just internal Department of Justice regulations without an underlying statutory basis.
On May 17, 2017, Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller as special counsel to investigate alleged Russian involvement in the Trump election campaign. Mueller’s appointment came after Attorney General Jeff Sessions recused himself because of possible conflict of interest. Sessions had participated in the Trump campaign.
Trump Using Media to Create Case for Mueller’s Firing
Recently, President Trump has been making a case in the media for Mueller to be fired. Trump claims that the charges of Russian meddling in his campaign are only a “witch hunt” by disgruntled Democrats and his defeated opponent in the election, Hillary Clinton.
Past presidents have successfully fired special prosecutors for various reasons. In 1875, for example, President Grant fired Special Prosecutor John B. Henderson on the basis that Henderson’s statements to a grand jury about Grant that were “impertinent.”
In 1973, President Nixon ordered Special Prosecutor Archibald Cox to be fired after a Court of Appeals instructed the president to comply with a subpoena for the White House secret tapes. Cox was fired by Solicitor General Robert Bork, but only after Attorney General Elliot Richardson and then Deputy Attorney General William Ruckelhaus refused to carry out Nixon’s order. The incident became known as the “Saturday Night Massacre.”
Firing Mueller Could Destroy Trump Administration
It is unprecedented for a president to fire a special counsel during an investigation. Many members of Congress, including some key members of Trump’s own Republican Party, have cautioned him against firing Mueller for several reasons. First, the public perception would be that Trump was trying to hide something, such as evidence of collusion with the Russians.
Second, Trump ally Senator Lindsey Graham (R-SC) warned Trump that firing Mueller “would be the beginning of the end of [Trump’s] presidency.” Speaker of the House Paul Ryan (R-WI) has always advised Trump to let Mueller and his team do their job.
Third, Senator Jeff Flake (R-AZ) admitted on national TV that he discussed the potential firing of Mueller with some of his Senate colleagues. Flake said that if Trump goes after Mueller, they will go after Trump.
Fourth, President Trump’s claims of partisanship in this investigation are not credible. Robert Mueller is a Republican with a reputation of the highest integrity. Rosenstein, also a Republican, was personally selected by Trump to be deputy attorney general. For Trump to attack Mueller personally is self-defeating.
The most important aspect of this potential crisis is that even if Trump were to successfully fire Mueller, it in no way would end the investigation. Historically, a new special prosecutor has always been appointed to continue the case to its conclusion. Rosenstein would simply appoint another special counsel to replace Mueller to continue the investigation of Russian interference in the 2016 election.
About the Author
Dr. Stephen Schwalbe is an associate professor at American Military University. He is also an adjunct professor at Columbia College and Embry-Riddle Aeronautical University. Stephen received a Ph.D. in Public Administration and Public Policy from Auburn University in 2006.
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