On Wednesday President Trump fired Jeff Sessions, or asked Sessions to resign (which is really the same thing).[1]

This was, of course, the day after the mid-term elections. Honestly, I found the timing a little bit suspicious. Why do this the day after the election? It could be that Trump wanted to distract from the thumping he just took in the House; it could be that he started to panic about the fact that the House can now investigate him and his administration up the wazoo.[2]

Trump appointed Matt Whittaker to be the provisional Attorney General, and Whittaker is a political hack who has previously argued that the Mueller investigation has gone too far. This has obviously made a lot of people nervous (especially Democrats) believing that it’s a setup for Trump to fire Mueller. I don’t know about that, and I also don’t know that it’s not true. But before we get there, let’s review a little bit of the Independent Counsel statute and what Mueller’s legal authority is.

The Independent Counsel Statute

The Independent Counsel Statute was enacted in 1978 as part of the Ethics in Government Act as a response to the “Saturday Night Massacre.” That was the incident where Richard Nixon ordered the firing of special prosecutor Archibald Cox during the Watergate Investigation. The conclusion from that episode was that a special prosecutor investigating a Presidential administration needed to be protected from that administration. As a consequence, the Independent Counsel Statute was enacted and included provisions that prevented a President from firing such a prosecutor on his own initiative.

Over the next 22 years, the Special Prosecutor conducted a baker’s dozen investigations that no one remembers, until we get to Ken Starr and the investigation of Bill Clinton. (For those of you who’ve forgotten) the Starr investigation began as a look into the Whitewater land deal and ended up with an investigation of a Presidential blow job. In between we had investigations looking into the suicide of Vince Foster, Travelgate, Filegate, and the sexual harassment allegations of Paula Jones.

A lot of people (myself included) thought that the Starr investigation went much too far, was much too partisan, and went into all kinds of topics that had nothing to do with the original mandate. Starr’s reputation was permanently damaged.

For this and similar reasons, the United States Congress let the Independent Counsel law expire at the end of 1999, as the law had to be renewed on a regular basis to stay in force.

Special Counsel Investigation

The current Mueller investigation is not, obviously, being conducted under the expired Independent Counsel Statute. Instead, its authority is based on an order coming out of the Attorney General’s Office, signed by then Deputy Rod Rosenstein[3], and which is directed to investigating Russian interference in the 2016 Presidential election and “related matters.”

The investigation is formally under the supervision of the Department of Justice, which is part of the Trump administration. Up until now, Rosenstein has done a reasonably good job in shielding the Mueller investigation from interference by Donald Trump.

However, the Donald is correct when he argues that legally nothing prevents him from firing Mueller. He can’t do it directly – he has to do it through a surrogate, like Rod Rosenstein or Matt Whitaker – but in effect he can still get it done. The inhibition is therefore not legal but political. If he does fire Mueller (as many other commentators have noted) it would cause a “Constitutional crisis” which even Trump may be unwilling to precipitate.

Still, it would be a strange time for Trump to try to fire Mueller. With the House turning Democratic, the House could essentially pick up where Mueller left off. Granted, the House could not bring indictments against Trump’s administration, but they could take all of his materials, gather some more of their own (using their subpoena powers), and publish the resulting findings.

If the House did do that, many Republicans would (of course) complain that the investigation is “partisan” and try to delegitimize it in that way. But Republicans have already been working overtime to delegitimize the Mueller investigation, notwithstanding that Mueller is a Republican, Rod Rosenstein (who appointed him) is a Republican, and former FBI Director James Comey (who got the ball rolling) is a Republican.[4]

I think Pandora is already out of the box, and all the huffing and puffing on the part of President Obergropenführer isn’t going to get her back into the box.

But we’ll have to wait and see.

[1] The only difference is that it apparently gives Trump a little more latitude about who can replace Sessions on a temporary basis.

[2] It’s been an open secret that Trump has been itching to fire Sessions as soon as possible since Sessions engaged in the highly disloyal act (in Trump’s view) of recusing himself from the Russia investigation.

[3] Sessions had, correctly, recused himself from an investigation of the Trump campaign since he had been directly involved in it.

[4] In particular, Donald Trump admitted to CBS journalist Lesley Stahl that part of the reason he criticizes the medial so incessantly is to “discredit” and “demean” the media, so when the media writes negative stories about him, “no one will believe” them.