President Trump’s allies are stepping up their attacks against the special counsel charged with investigating Russian meddling in the 2016 presidential election, a risky strategy that legal experts and some Trump supporters warn could backfire.
Former House Speaker Newt Gingrich (R-Ga.), an unofficial adviser to Trump whose new book on the president comes out Tuesday, is leading the charge, calling on the Justice Department to scrap the special investigation it launched to bipartisan praise less than one month ago.
At the time, Gingrich was among those who lauded the selection of former FBI Director Robert Mueller to lead the investigation.
Republican National Committee Chairwoman Ronna McDaniel has stopped short of demanding an end to the special counsel but said the investigation — which some have speculated could span months or even years — should “quickly” be brought to a close.
And Jay Sekulow, a new member of Trump’s legal team, left open the possibility that the administration could fire Mueller if the president believes the probe is compromised in any way.
“The president has authority to take action,” Sekulow said on ABC News’s “This Week.” “Whether he would do it is ultimately a decision the president makes.”
White House press secretary Sean Spicer ignored a shouted question from a reporter on Monday about whether Trump has confidence in Mueller.
At a press conference last week, Trump said he’s “100 percent” willing to go under oath to rebut sworn testimony from former FBI Director James Comey, potentially setting up a high-stakes encounter with Mueller — assuming the administration doesn’t act to remove him first.
But legal experts interviewed by The Hill say firing Mueller would backfire spectacularly and lead to further allegations of obstruction of justice.
“What you have here is just some hotheads exploring different ways they can undermine Mueller, but it’s total baloney,” said Richard Painter, the White House ethics lawyer for former President George W. Bush.
“Mueller was appointed [FBI chief] by Bush, and he’s a total straight shooter,” Painter said. “They’re trying to sow doubt around him because at the end of the day, if it comes to impeachment, that’s a political process and they need to be in position to make a political argument about why the special prosecutor was compromised. But firing Mueller would be such a disaster that Republicans would throw their hands up and say ‘give us [Vice President] Pence.’ ”
Even some of Trump’s closest confidantes say he should pump the brakes on talk of firing Mueller.
“While I do think Robert Mueller poses a threat to the Trump presidency, it would be a mistake to fire him,” said Newsmax CEO Christopher Ruddy, who is good friends with Trump. “If Mueller engages in prosecutorial activity that is deemed over the top or outside the bounds of normal, the White House and President Trump supporters should be quite critical of him.”
The attacks against Mueller’s investigative body follow Trump’s strategy of seeking to tar the independent political actors who could do harm to the White House, like Comey, who has since emerged as one of Trump’s chief antagonists.
Gingrich and other conservatives are drawing attention to what they say is a close relationship between Mueller and Comey.
Speaking on “Fox News Sunday,” Gingrich described Comey as “one of [Mueller’s] closest friends.”
“Look at who Mueller’s starting to hire,” Gingrich said. “I mean, these are people that, frankly, look to me like they’re setting up to go after Trump.”
McDaniel is accusing Trump’s enemies of trying to swamp the president with endless investigations in an effort to “cloud the administration as much as possible.” In addition to the special counsel, there are probes at both the House and Senate Intelligence committees.
And Sekulow sought to draw attention to the fact that Comey had been in touch with Mueller’s team before his testimony on Capitol Hill last week.
In testimony before the Senate Intelligence Committee, Comey explained how he had shared his personal memos for the express purpose of getting a special counsel appointed.
It worked, and Mueller is now in charge.
Still, conservatives in the legal community say there are risks in attacking Mueller, whose support inside Washington spans the spectrum.
“It’s really dangerous to go after him,” said Matt Whitaker, a former U.S. attorney who launched the conservative group Foundation for Accountability and Civic Trust. “Mueller is certainly close to Comey, but if you’re assuming his judgment will be skewed because of it, that’s just wrong. He’s a pro. Nobody has a reputation like Bob Mueller, so you better have something specific to go after him with if you’re going to claim that he’s biased.”
The president does not have the authority to unilaterally fire a special investigator. That responsibility is normally reserved for the attorney general.
However, in this case, Attorney General Jeff SessionsJeff SessionsTrump allies’ attacks against special counsel could backfire The Memo: Trump allies turn fire on Mueller Warren calls for Sessions to be fired MORE has recused himself from the Russia investigation — a decision that has created tension between Trump and Sessions.
Trump could fire Sessions and order a new attorney general to fire Mueller.
As it stands, the decision on Mueller’s future sits with Deputy Attorney General Rod Rosenstein, who appointed Mueller in the first place and would likely not have any interest in firing him.
But Trump could also have Rosenstein replaced with someone willing to fire Mueller.
There is precedent for that.
Former President Richard Nixon fired his attorney general and his deputy attorney general after both refused his demand to fire the special investigator in the Watergate probe.
The firings elevated then-Solicitor General Robert Bork to the head of the Justice Department. Bork complied with Nixon’s order to fire the special investigator in an episode that came to be known as the “Saturday Night Massacre.”
Nixon was impeached in short order and resigned weeks later.
“It would backfire. There is a limit to what the American people would accept,” said Bill Jeffress, a prominent Washington criminal lawyer who was on the defense team for I. Lewis “Scooter” Libby’s leak case during the George W. Bush administration.
“Trump says he has been vindicated, so what is he worried about? To go down that path would be damaging beyond belief. Mueller is a straight arrow and nothing the Trump people are saying right now will change that.”