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Republicans To Trump: Don't Fire Mueller Or We'll Do Nothing

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The mainstream view among Republicans on Capitol Hill is that President Trump shouldn’t fire Robert Mueller. But that position is purely notional. Everything Republicans have said and done in response to Trump’s continuing attacks on the special counsel has communicated an overriding view that though firing Mueller would be inadvisable, they don’t believe his job is really worth saving.

You can reach that same conclusion from a number of angles, but the most direct is by examining the circumstances under which Republicans say they might intervene, and comparing those to their other intrusions into executive branch employment decisions.

Mueller’s job happens to sit at the fulcrum of a constitutional crisis, but at a basic level it is a staffing issue. Presidents don’t have equal power over the service of all government employees, and where Congress wants to insulate civil servants or appointees from presidential interference, or give the president more influence over who serves in executive branch positions, it can and does. It is these kinds of decisions that have allowed Trump to make unprecedented use of his statutory authority to staff senior positions with interim officials. And it stands to reason that if the White House were to fall into Democratic hands, these same Republicans would go to extraordinary lengths to take that power away from the president. During the Obama presidency, Republicans routinely filibustered qualified nominees as a means of weakening or nullifying the agencies they were appointed to lead. After a Democrat won the governorship of North Carolina, the General Assembly passed emergency laws meant to strip him of his power to make certain appointments in the first place.

In other words, Republican legislators know how to assert themselves with urgency over executive branch staffing matters, and when they choose not to, it reveals a level of apathy over what staffing decisions might arise as a result.

No senator embodies the GOP’s self-undermining position on Mueller as completely as Sen. Lindsey Graham (R-SC). On Sunday, Graham warned Trump that firing Mueller would be “the beginning the end of his presidency” and argued that if Mueller “got fired without cause there probably would be an effort to reinstate him as an independent counsel.”

As it happens, Graham is the coauthor of a piece of legislation that would protect Mueller’s job proactively, but, like essentially every other Republican in Congress, has also decided that doing anything proactive to protect Mueller is completely unnecessary. Graham’s bill has stalled, and he intends to keep it stalled. Trump is likely enough to fire Mueller, in other words, that Graham and other Republicans wrote bills designed to take that power out of Trump’s hands, but are now arguing in effect that they wrote these bills for no reason.

Even if Republicans could be counted on to restore the Mueller investigation after Trump terminated it, they would still be revealing a striking indifference to the integrity of the investigation itself.

As the law professor Steve Vladek has noted, “reinstat[ing Mueller] as an independent counsel” would very likely be unconstitutional, and thus subject to challenge, whereas fortifying the ongoing investigation would be legally straightforward.

Along the same lines, and against a backdrop in which Trump has fired an FBI director because of the Russia investigation, purged the FBI’s other senior leaders, pressured DOJ officials to end the probe, and enlisted his intelligence chiefs to intervene in the matter on his behalf, it can not be assumed that in a liminal period between Mueller’s firing and rehiring, Trump and his lackeys wouldn’t tamper with the investigation. They could do this directly, or, as they have already, through targeted abuse and firings designed to intimidate civil servants who agreed to participate in it.

Then, having seized the initiative, Trump would be able to make killing legislative efforts to reanimate the Mueller probe a litmus test for Republican politicians. By refusing to preempt Trump, Republicans are sacrificing the element of surprise, and other leverage points that they will no longer have if they wait until Trump does the deed. There might be majorities in both the House and Senate for an appropriations bill that includes a provision preserving the special counsel’s status quo, but there will be no such majorities, let alone veto-proof supermajorities, for a stand alone bill to effectively reverse Mueller’s firing. Such a bill would more likely never get a vote at all, and the investigation would simply never be restarted.

Republicans pleading with Trump not to fire Mueller are more properly understood to be asking him not to put them in the position of having to capitulate. Aware as they are of the threat, if they’re unwilling to take the easiest possible step to assure the investigation reaches its conclusion, why would anyone assume they’ll take a much harder one in the future?