From Opinion to Rumor to Fact

The Opinion

The opinion is that of Chris Ruddy, CEO of Newsmax Media, reportedly a friend of President Trump’s.   Mr. Ruddy in an interview with Judy Woodruff on PBS’ NewsHour opined “”I think he’s considering perhaps terminating the special counsel, I think he’s weighing that option.”  Mr. Ruddy made it very clear that his opinion was based on Jay Sekulow’s  interview with George Stephanopoulos on ABC’s This Week.  In Mr. Sekulow’s interview, in response to Stephanopoulos’ question, Mr. Sekulow said, relative to the President’s constitutional authority, not Trumps intention:

STEPHANOPOULOS: And finally, will the president promise not to interfere, not attempt at any time to order the deputy attorney general to fire Robert Mueller?

SEKULOW: Look, the president of the United States, as we all know, is a unitary executive. But the president is going to seek the advice of his counsel and inside the government as well as outside. And I’m not going to speculate on what he will or will not do.

But right now the role of the president is to govern the United States of America. He’s going to do that. He’s going to leave anything else to the lawyers. But I can’t imagine that that issue is going to arise. But that again is an issue that the president with his advisers would discuss if there was a basis.

I mean, George, if there was a basis upon which there was a question raised that raised the kind of issues that are serious, as in the situation with James Comey, the president has authority to take action. Whether he would do it is ultimately a decision the president makes.

I think that’s complete conjecture and speculation. The Constitution, it’s a unitary executive. You know that, you worked for a president.

In my humble opinion Mr. Ruddy’s interpretation of this exchange was total off-the-wall, as Sekulow said “I think that’s complete conjecture and speculation.”

The under reported fact that came out in the Ruddy interview is Mueller’s law firm represents members of the Trump Family and Muller was interviewed, just prior to his appointment, for the position of FBI director.  Looks like a potential conflict of interest to me.

The Rumor

Saba Hamedy, Jim Acosta and Kevin Liptak of CNN reported on the Woodruff and other interviews, under the headline “Trump’s friend Christopher Ruddy says President considering firing Mueller” citing Ruddy’s interview with CNN’s Chris Cuomo on “New Day” and the Woodruff  interview.

They bolster their case with “a person familiar with Trump’s thinking said Tuesday morning that it’s “unlikely” the President will fire Mueller, but conceded that it’s often difficult to predict Trump’s behavior.”

The CNN team does report “White House press secretary Sean Spicer said: “Mr. Ruddy never spoke to the President regarding this issue. With respect to this subject, only the President or his attorneys are authorized to comment.”

They also gave Ruddy’s response to Spicer:

“Spicer issued a bizarre late night press release that a) doesn’t deny my claim the President is considering firing Mueller and b) says I didn’t speak to the President about the matter — when I never claimed to have done so. Memo to Sean: focus your efforts on exposing the flim-flam Russian allegations against POTUS and highlighting his remarkable achievements! Don’t waste time trying to undermine one of your few allies.”

They also cited Newt Gingrich’s comment that Congress should “abolish the independent counsel.” [sic – Muller is Special Counsel, Congress abolished the Independent Counsel on June 30, 1999 when it was allowed to sunset].

The Fact

New York Magazine’s  Jonathan Chait, reported under the headline “Trump Is Crazy Enough to Fire the Special Prosecutor“:

Christopher Ruddy, CEO of Newsmax (a right-wing media organ) and a close confidante of President Trump — indeed, Ruddy visited the White House on Monday — tells Judy Woodruff that Trump is considering firing special prosecutor Robert Mueller. The prospect has struck many people as the kind of outlandish move Trump might rant about in private, but would hesitate to actually do. But the administration has declined to repudiate the trial balloon. (Sarah Sanders says only that Ruddy “speaks for himself,” a non-response.)

Trump will probably not fire Mueller right away. But the odds that he will fire him eventually are quite strong, perhaps 50-50 or higher.

Aside – I want to play poker with Mr. Chait, who believes 50:50 odds are quite strong.

Debunked

Just Security’s Marty Lederman lays out the reasons Trump can’t fire Mueller:

There are two reasons why the President himself cannot remove Mueller.  First, the statutory power to appoint a Special Counsel is vested in the Attorney General, and the longstanding general rule is that unless Congress specifies otherwise, “the power of removal [is] incident to the power of appointment.”  Thus “the President has certainly no power to remove” officers appointed by a department head (absent statutory authorization for such presidential removal, which is not present here); such removal, instead, can be exercised only by the department head who appointed the officer–here, the (Acting) Attorney General.   Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259-60 (1839); accord PCAOB v. FEF, 561 U.S. 477, 493 (2010).  This explains why Richard Nixon did not try to personally remove Archibald Cox (or, for that matter, Leon Jaworski).

Second, the removal provision of the regulation pursuant to which the Acting AG appointed Mueller, 28 CFR 600.7(d), provides that a Special Counsel appointed from outside the Department of Justice (as Mueller was) “may be disciplined or removed from office only by the personal action of the Attorney General.”  And, as explained below, that limitation is binding on the Executive branch (including the President) as long as the regulation is on the books.

 

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