Editor’s Note: Former Ambassador Norman L. Eisen, a CNN contributor, is a senior fellow at The Brookings Institution and served as President Obama’s “Ethics Czar” from 2009-11. Fred Wertheimer is the founder and president of Democracy 21, a nonprofit, nonpartisan organization that seeks to promote government accountability and integrity. The opinions expressed in this commentary are theirs.
Norman Eisen and Fred Wertheimer say the firing of Mueller would trigger a constitutional crisis
The answer would be a Watergate-style three-part investigation, they say
On October 20, 1973, President Richard Nixon executed the infamous “Saturday Night Massacre” in which Watergate special prosecutor Archibald Cox was fired and the special prosecutor’s office was shut down.
A national firestorm ensued. Less than two weeks later, the President was forced to appoint a new special prosecutor, Leon Jaworski, and the office was back in business.
President Trump said Thursday that he hasn’t given any thought to firing Robert Mueller, who is leading the Russia investigation that Trump has described as a “witch hunt.”
But this new statement contradicts earlier ones made by people close to Trump that the President was considering firing Mueller. Given these earlier statements and the fact that President Trump himself has said he fired FBI Director James Comey to get rid of the “great pressure” of the Russian investigation, Trump’s most recent assertions are not particularly credible.
President Trump has no legitimate basis for getting rid of Mueller or his office. And if he does fire Mueller and shut down the Russia investigation, an enormous national firestorm will occur.
The public opposes the removal of Mueller from his position by better than 2 to 1. And numerous congressional Republicans and Democrats have expressed their support for Mueller and their opposition to his removal. Last week, two bipartisan bills were introduced by Sens. Lindsey Graham and Cory Booker, and by Sens. Thom Tillis and Chris Coons to protect Mueller from being fired.
If this legislation is not enacted and President Trump does make the catastrophic mistake of firing Mueller or issues pardons to himself or others involved in the Mueller investigation, Trump will have crossed a red line and precipitated a constitutional crisis. In these circumstances, the contemporary equivalent of the three institutions that resolved the Watergate scandal will again be needed. They included: the Watergate Special Prosecutor’s Office, a Senate Select Committee and the House Judiciary Committee.
The immediate priority in the event Mueller is fired will be to protect today’s version of the special prosecutor’s office, that of the special counsel. Its staff and its files gathered as part of the investigation will have to be preserved. A new head of that office will need to be appointed (or Mueller reappointed) to continue the investigation. This will require bringing national and sustained public outcry to bear on the President, the Justice Department and Congress with a simple message: Preserve the office and protect its work product.
But that alone is not enough.
If Trump fires Mueller as he did former Comey, he will have created incontrovertible evidence that he is interfering with the administration of justice in order to protect himself, his family and his associates from criminal investigation. If that happens, the House must itself immediately begin bipartisan hearings in the Judiciary Committee on abuse of power and obstruction of justice by President Trump.
These hearings could lead to impeachment proceedings. Republicans need not prejudge the impeachment question simply because they are looking into abuse of power.
As noted, a large number of House Republicans have expressed their support of Mueller, including House Speaker Paul Ryan. Texas Republican Rep. Michael McCaul, chairman of the Homeland Security Committee, recently said, “If [Trump] fired Bob Mueller, I think he’d see a tremendous backlash response from both Democrats but also House Republicans.”
If the termination occurs, they need to prove they meant it and commence House Judiciary proceedings, and let the chips fall where they may.
The same is true for Senate Republicans who have expressed their support for Mueller, including Senate Majority Leader Mitch McConnell. Sen. Lindsey Graham recently said, “Any effort to go after Mueller could be the beginning of the end of the Trump presidency, unless Mueller did something wrong,” and, “Right now, I have no reason to believe Mueller is compromised.”
A firing of Mueller should lead to the creation of a modern-day analogue of the Senate Select Watergate Committee to investigate all matters involved in the Russia scandals and Trump’s obstruction of the investigation. At that point, we would be past the stage where individual Senate committees with their own limited jurisdictions could effectively deal with the broad-ranging investigation that would be required.
Although we believe the same tripartite investigative structure as in Watergate would work well, we recognize that the circumstances today are different than during Watergate. The Senate Watergate hearings, the House impeachment proceedings and the Watergate special prosecutor investigation were at different stages than today’s congressional and special counsel probes. And Congress was controlled by Democrats during Watergate, whereas Republicans control Congress today.
Nevertheless, the same across-the-board checks and balances that successfully resolved the Watergate scandals – and the constitutional crisis that resulted — can counter the type of presidential transgression of red lines that would occur if President Trump carried through on his implied threats to Mueller and the office.
President Trump has repeatedly shown his disdain for our law enforcement system. He has again and again attacked Justice Department and FBI officials and attempted to intimidate them from investigating him. If he continues on this trajectory, the most effective reply in defense of the rule of law and our democracy will be a Watergate-style tripartite investigation — one backed by the full-throated concern and anger of the American people.