No One Can Replace Robert Mueller
The Donald Trump legal team has been notably unable to escape from the shadow of its client. At every step of the way, otherwise professional lawyers start to act like the bombastic, reckless President that they are trying to keep out of prison or historical infamy. First, Trump attorney Mark Kasowitz was fired after directing vulgar language at a private citizen. Then, Ty Cobb and John Dowd loudly discussed sensitive details of the case at a press-adjacent steakhouse. Later embarrassing moments included the unhiring of Joe DiGenova and Victoria Toensing, everything about Michael Cohen, and the crown jewel of all Trump’s-terrible-lawyers stories, Rudy Giuliani’s media circus.
What does the Trump legal team’s revolving door mean? These stories point to inherent instability. Matt Ford at The New Republic wrote that Trump will never be able to keep a proper legal team because he has no real legal strategy. Whatever strategy exists “so far appears to be predicated on punching back rather than crafting a sound defense, which helps explain why he’s had so much difficulty hiring and retaining lawyers.” A law professor writing for The Hill was even more direct: “You simply must have a strategy that you are following through on. He has literally nothing…” No strategy uniting Trump’s legal defense has made all of its parts interchangeable; it’s the same no matter which individual lawyers are involved.
Speculating about the future of the Russia investigation, political pundits have suggested that Robert Mueller is likewise replaceable — that the his investigation would survive intact even if he were fired. They have pointed to evidence that the Southern District of Manhattan’s federal attorney coordinated the raid on Michael Cohen’s office and that Mueller’s investigation has delivered evidence to the New York Attorney General’s office as a safeguard. Law professor Jed Shugerman believes this is part of Mueller and Deputy Attorney General Rod Rosenstein’s “backup plan” that will share their evidence with state prosecutors and create numerous redundancies in case they are fired. A recent article in Politico argued that “Justice Department officials and FBI agents could simply pick up where a fired Mueller left off. State attorneys could bring their own charges against Trump … Even as a private citizen, Mueller might be able to publicize or share his findings with Congress.”
But would it really be that easy to replace Mueller? Can an investigation against Trump switch out its own lawyers as often as Trump switches out his? And if Mueller is taken down, can other attorneys pick up the slack?
Trump can change lawyers at a whim and still seems on safe legal footing simply because he is President. The presidency affords layers upon layers of protection for the chief executive and his employees. Trump has the power to sign or veto any legislation that Congress passes. He could nominate Michael Cohen as an appellate judge or support primary challengers against congressional leaders. And, no matter what he did to stymie the power of Congress, he might not be punished for it. Unlike in earlier eras of American history, Congress currently has a lower approval rating than many painful medical procedures. No one would be out in the streets protesting if Trump overstepped his constitutional bounds by taking action against Mitch McConnell or Kevin McCarthy. Stuck in this conundrum, the Republican Congress has little choice but to acquiesce to the President’s wishes, even to the extent of helping him attack the Russia investigation.
The Mueller investigation suffers from being a target of all of these powerful individuals. Congressional leaders, with the blessing of Speaker Paul Ryan, have harassed and attempted to discredit the investigation at every step. They want to goad investigators into making a mistake that will undermine their popular support and allow the President to fire the Special Counsel. The Nixon parallel here is clear. Although his Congress was less supportive, Richard Nixon still tried to undermine his first Special Prosecutor, Archibald Cox, at every turn. He believed that the American people would see the subpoena of the White House tapes as a mistake that warranted Cox’s firing. Given that Cox was replaced almost immediately by the Special Prosecutor who succeeded in obtaining the tapes, Leon Jaworski, Nixon clearly miscalculated.
The Special Counsel cannot make any mistakes. Robert Mueller does not leak because leaking would be a mistake. The same goes for telegraphing where his investigation is going, or prematurely naming the President a target, or moving too fast. All of these actions would help give the President the slimmest of pretexts, the only pretext he needs, to fire the Special Counsel.
Why couldn’t another trained, seasoned prosecutor be brought in to replace Mueller? They may have the same connections and the same clout that Mueller has, but none has run a perfect investigation for an entire year. Dozens of politicians have vouched for Mueller, and millions of Americans know his name. Numerous liberal organizations have promised to rise up if Mueller is fired. The next prosecutor in line would have to build up that same clout from scratch. There is a good chance that while Mueller has survived a year of close calls and threatened firings from the President, his successor could be fired the instant they asked a question that the President did not like. Also, unlike in the Nixon era, there is not enough bipartisanship today to allow another Leon Jaworski.
Firing Mueller does not mean the end of American democracy. The public backlash would be intense and may lead to Mueller being appointed as an independent prosecutor. However, there will not be an easy replacement for Democrats and Republicans who want the Russia investigation to continue. Critics of President Trump need to find as many ways as they possibly can to fight back in the event of a Mueller firing. There may not be an alternative.