Donald Trump – who seemed to be trying to intimidate the Justice Department and the special counsel in a New York Times interview this week – is reportedly considering a variety of dramatic moves against the Russia investigation, perhaps including firing special counsel Robert Mueller (something many have been reporting on for some time) and pardoning members of his family, campaign and administration (something which, up to now, appeared to be just the speculation of some of the most hair-on-fire observers).
These are extremely fraught waters for the president to travel in. It’s certainly possible that this is just more bluster. But it’s also possible he'll act. If so, here’s the legal and constitutional situation, as I understand it – with the major caveat that much of this is untested. Presidents just haven’t done these things.
The issue with firing Mueller is that he was hired, and probably must be fired, by Deputy Attorney General Rod Rosenstein, who is the acting attorney general for all matters in this case as Attorney General Jeff Sessions has recused himself.
Trump could fire Rosenstein. It’s not clear, however, whether he could find anyone in the chain of command willing to fire Mueller. I suppose Trump also could attempt to fire Mueller directly despite not having the authority to do so, which would be something close to a constitutional crisis; presumably, the courts would have to rule whether Mueller was fired lawfully, and then we would see whether Trump would defy the courts as well.
The issue with pardons is a little clearer, at least to begin with. The constitutional power to pardon for federal crimes (even if no one has yet been charged) is essentially absolute, with the main question being whether the president can pardon himself. The constraint on this power is political, not legal.
Pardoning those around him might be great for them, but it wouldn’t necessarily help Trump. That’s because removing them from legal jeopardy would also remove the protection of the Fifth Amendment: Because they could no longer incriminate themselves, they could be compelled to testify in court or in Congress and be held in contempt if they refused, or charged with perjury if they lied. At least, it appears that is the case. What’s more, once they had been pardoned, they would have little incentive to stay silent.
Whatever the answers to all of those questions, the big picture is that Trump has already obstructed justice; he did that just by firing FBI Director James Comey for continuing the Russia investigation, and he further obstructed justice by threatening those properly conducting the investigation today. But impeachment and removal of a president is a severe remedy, one that should be used only when necessary.
Up to this point (and pending potential further information to be revealed), there are strong arguments that even if Trump has acted criminally, it still hasn’t reached that point of necessity. Pre-emptive pardons? Firing the investigator? That’s when obstruction moves from something that could be perhaps overlooked to, well, something that really would have to be countered in order to ensure the rule of law.
The only remedy for inappropriate pardons would be political. Would congressional Republicans move to impeach and convict Trump if he took these steps? We don’t know. Would they otherwise move against him? We don’t know. It seems fairly likely that these sorts of acts would drive Trump’s popularity further down and at least (depending on what he actually did) move everyone further down the road toward considering impeachment and removal, but there’s no way at all to know for sure.
The ball would be in the court of Republicans in Congress – and citizens of a democracy in grave danger.
The writer is a Bloomberg View columnist.