There is a misconception among nerds that the Administrative Procedure Act of 1946 prevents Trump from firing Special Counsel Robert Mueller. Here is MSNBC Chief Legal Correspondent Ari Melber articulating that position:
He cannot [fire Mueller] under our laws and rules…the DOJ rules…state that a special counsel…can only removed for cause by the acting Attorney General…[Trump firing Mueller] is fan fiction.
That argument relies on the “weak unitary executive” theory of the presidency as laid out below.
Strongly Unitary Executive
The Constitution confers federal executive power upon the President, therefore, POTUS can run the executive branch as he pleases. The DoJ are essentially his employees.
Weakly Unitary Executive
The Founding Fathers never intended to confer imperial authority upon the President– the office is merely an administrative position charged w/ slavishly enforcing Congress’ edicts.
Moreover, the Administrative Procedure Act— passed by Congress and signed by the President– gives DOJ rules and regulations the force of law.
Here’s why the “Weakly Unitary Executive” theory is “fan fiction” in practice:
- (1) Trump could simply issue an executive order immediately rescinding or amending 28 CFR 600.4 (the rule stating a Special Counsel can only removed for cause by the acting Attorney General).
- (2) Trump could simply name Mike Pence or Scott Pruitt or anyone else (even himself) the new Deputy AG. That person could then fire or curtail Mueller in accordance w/ DOJ regulations.
- (3) Trump could skip the charade, fire Mueller in violation of DOJ regulations, and dare someone to do something about it.
Let’s game out #3…
|Trump fires Mueller, and orders all materials related to the investigation seized and destroyed.|
|Mueller’s allies seek judicial relief on his behalf.|
|Courts side w/ Mueller, orders the regime to comply.|
|Trump chooses not to comply.|
|Courts demand the Trump regime comply.|
|Trump chooses not to comply, and issues blanket pardons to DOJ officials that act in violation of court orders.|
|Congress moves to impeach Trump.|
|Trump authorizes major military action against Muslims or Mexicans to distract the public.|
|If, at that point, Congress continues to move forward w/ impeachment– Trump could arrest Congress, dissolve the judiciary, declare himself Emperor, and issue blanket pardons for all those involved (including himself).|
In short, any theoretical constraints on Executive Power ultimately relies solely on the Executive’s unwillingness to break convention.