There have been unconfirmed speculations that Trump might fire Special Counsel Robert Mueller who was appointed to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

So, can the President fire the special counsel, if not, who can?


3 Answers 3


Let me go into a little more detail than Panda's (excellent) answer.

In the past, presidents have fired special prosecutors/counsels for various reasons; the laws governing the special counsel explain some of the reasons that Attorney General could do so (§ 600.7), and these were presumably also possible reasons for a president. However, this presidential ability was changed in 1999, two decades after Nixon's Saturday Night Massacre, a mass firing which has already been suggested as a precursor to some of Trump's actions.

According to those regulations, only the Attorney General or Acting Attorney General can fire the special counsel (§ 600.7 (d)), emphasis mine:

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

The Attorney General, Jeff Sessions, has recused himself from relevant matters, so things now fall to Deputy Attorney General Rod Rosenstein, who is the Acting Attorney General with regards the Russian investigation1. Rosenstein himself - not a subordinate, not a superior (unless Sessions undoes his recusal somehow) - must make the decision. While he is in office, he is the sole human being with this power.

Clearly, Rosenstein is the one person who could fire the special counsel, Robert Mueller. However, Trump could attempt to indirectly fire Mueller. Nixon ordered his Attorney General to fire the special prosecutor, and Trump could theoretically give similar orders to Deputy Attorney General Rod Rosenstein . . . which Rosenstein likely would not follow. Therefore, Trump has another option: firing Rosenstein and getting another Deputy Attorney General who would fire Mueller. If Trump fires Rosenstein, then orders could move down the chain of command in the Justice Department - established via an executive order of Trump's.

The Washington Post wrote a detailed article explaining that Trump basically has two options:

  • Doing the above, i.e. firing those who do not take action, or
  • Hoping that Congress will not enforce the ethics regulations. It's unclear whether or not he would be successful; I don't know whether Republicans would be willing to go against their own president, but at the same time, it would severely hurt them in the public eye if they did not. I also don't know what the precedents or mechanisms for enforcing those regulations are.

All of this, by the way, would involve intense public backlash. Trump is still under criticism for his firing of former FBI Director James Comey, and another set of firings would not improve his credibility . . . and draw more Watergate comparisons.

Here's a graphic from that Washington Post article:

enter image description here

To answer the question directly: Only the Attorney General or Acting Attorney General can personally fire the special counsel. However, Trump can either ignore the laws or fire those who will not do as he wants.

1 Questions from the Senate Judiciary Committee confirm that Rosenstein is the Acting Attorney General for the Russian investigation after the recusal by Sessions.

  • Session's recusal does not make Rosenstein the Acting AG which is a position and not a function and so cannot be subdivided by task, AFAIK. So how does Rosenstein enter into this? The statue does not seem to make any provision for recusal. Jun 13, 2017 at 21:05
  • 4
    Also, the graphic misses that Trump could fire Sessions and name his own Acting AG instead. Jun 13, 2017 at 21:06
  • 2
    @RBarryYoung Questioning by the Senate Judiciary Committee during Rosenstein's confirmation hearing confirms that the Deputy AG is in fact the Acting AG, and does fit into the rules for the operation of a Special Counsel.
    – HDE 226868
    Jun 13, 2017 at 22:11
  • That flowchart (I know it's not yours) is pretty nonsensical. Bug #1: If the attorneys general refuse to comply, Trump sticks to the regulations and Sessions stays recused, we ask again if Rosenstein wants to comply. But that's irrelevant, because Rosenstein has, by that point, been fired or resigned. Bug #2: suppose Rosenstein doesn't comply, Brand does, regulations are maintained but there are no grounds to fire: we get stuck in an infinite loop. Bug #3: Rosenstein and Brand don't comply, Boente does, regs maintained, no grounds, we go back to Brand, who's already resigned/been fired. Jun 15, 2017 at 10:00

No, only the Attorney-General can fire the special counsel.

28 CFR Part 600 outlines the general powers of a special counsel. Section 600.7 mentions how can the special counsel be removed from office.

(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

However, Attorney General Jeff Sessions has previously recused himself from any involvement in the Russia investigation, so the Deputy Attorney General Rod Rosenstein will be able to dismiss the special counsel.

Sessions previously recused himself from any involvement in the Russia investigation due to his role as a prominent campaign adviser and surrogate.

So that would leave such a decision to Rosenstein, who just appointed Mueller on May 17 to oversee the federal investigation into Russian interference in the 2016 election.

Source: http://edition.cnn.com/2017/06/13/politics/qa-trump-mueller-special-counsel-cnntv/index.html

  • 5
    Panda should listen to Panda as Panda gives good advice
    – SCFi
    Jun 13, 2017 at 16:11
  • 3
    @Panda, It can be argued that CFR does not apply to the president as it is an assignment of his power from the constitution in order to govern the executive branh. Of which his is the head. Jun 13, 2017 at 19:38
  • 2
    @FrankCedeno - I think you misunderstand what the CFR is. The CFR is not dictates from the President, to be revised at his whim. It is simply a compilation of all the regulations enacted by federal agencies which are set up by Congress with certain areas of responsibility. There are laws about how things get into the CFR - specifically, the APA.
    – Bobson
    Jun 14, 2017 at 11:03
  • 2
    @FrankCedeno - At best, the President has the power to appoint someone to lead a department who will enact new regulations according to the President's goals, following the appropriate laws and procedures. But this comment thread is getting unwieldy. If you want to continue this debate further, I suggest either asking a new question or citing a source that supports you. Currently, you're just stating what you believe to be true, rather than any proof, supporting laws, relevant experience, or authority opinions.
    – Bobson
    Jun 14, 2017 at 11:08
  • 4
    @FrankCedeno - No, Frank, the CEO can not ignore company policy. Company-specific sexual harassment policies and procedures are not set by law. They are each individual company's method for complying with the law, much like a CFR is a department's method for complying with the law. Maybe you've only worked for small, privately-owned companies where the CEO is the sole owner, but I've never worked in a company where the CEO and/or President is exempt from following policies. If that were so, they'd get smoked in court every time a current or ex- employee sued them. Jun 14, 2017 at 13:49

The short answer is yes, he can legally fire the special counsel and any person who falls under the Executive Branch, of which he is the head. He cannot be charged with any crime, nor can anyone with police powers come and arrest him.

That being said, it would be politically impossible for him to fire this special counsel under these specific circumstances because Congress (a separate entity and equal in power) can impeach the president for anything that has political traction.

Let me explain: It is not like us non-Presidents. If you or I commit a crime, the police arrest us, and then we are tried and - if convicted - punished. However, Congress, with the powers from the constitution, can initiate impeachment proceeding for any rule they themselves create. This is without consulting the President.

Many news articles give the impression through their tone and headlines (although I have yet to find an article that does not contain the truth, sometime in the second to last paragraph) that the special counsel can slap the handcuffs on the President and then perp walk him to the booking office. If you don't believe me, look at history. It has never happened. Including with Nixon.

To summarize: the Special Counsel is an employee of the Executive Branch, and works at the pleasure of the President. Firing him would give political points to Congress which could lead to impeachment.

Because of all the back and forth in the comment, I wanted to add the source for this answer.

History: The office of Attorney General can be traced back to an act of Congress during the Presidency of George Washington. The AG was to be a cabinet-level appointment that directly reported to the President under Article 2, Section 2 of the constitution with the intention of helping the President and Congress with legal advice. It grew to the current bureaucracy in several stages throughout history in order to help the president enforce laws and maintain prisons for the punishment of federal laws. In order to deal with this extensive bureaucracy, regulations were codified (CFRs) which included provisions for special counsels. Special counsels can "discover" matters which Congress or the President need advice on. Historically, President Nixon fired the special counsel who was discovering things about him. He did it by ordering the AG to do the firing, though he could have done it directly (and yes, he went through 3 AGs until Bort did it) but what difference!

Current Matters:

  • It is misleading to think that the special counsel could lead to an arrest of the President. He cannot be arrested by Law Enforcement, he can be Impeached, removed from office, and then arrested when he is not President.
  • Firing the special counsel could lead to an increase of Political Capital by those who oppose the President, which will increase the chances that Impeachment can be successful.
  • Theoretically, the President can be Impeached for anything at all, as long as there is political capital to make it successful, including acts that were done prior to election. Again, it is political, not logical, which is why the extensive campaign of ridicule and vitriol can work towards removal.
  • Again, because the President can be Impeached for anything, forcing the AG to appoint a special counsel is a brilliant move; since he can discover matters that can be embarrassing, he can also charge people (not the President) with lying to a special counsel. All this will tie up the attention of the Executive Branch, making it easier for it to lose political points.
  • 4
    Perhaps you have a source contradicting some of the claims made in the other two answers. CNN and the Washington Post might have things wrong, but via Cornell or wikipedia the code of federal regulations specifically d) seems to say special prosecutors are special.
    – user9389
    Jun 13, 2017 at 20:16
  • 1
    The source is the Constitution and I disagree, both news sources have misleading headlines but the truth is in the article. In fact, the speculation that he can fire is the biggest proof--that he can. Otherwise, what is the point? But, you just need to look at your own links. The first paragraph states: " A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice" which means he is subordinate to the DOJ which is subordinate to the President who gets his powers from the Constitution. Jun 13, 2017 at 20:24
  • 2
    This line of argument is plausible, but you're going to need to cite the appropriate laws. The Constitution only explicitly gives the President the power of appointment, and only with the Advice and Consent of the Senate - it doesn't cover his ability to remove people at will (although that could be implied) and it doesn't cover any non-A&C positions. I suggest looking for the law which establishes the Department of Justice and following it from there.
    – Bobson
    Jun 13, 2017 at 20:34
  • Including your comments in Panda's answer into this one would settle my objection.
    – user9389
    Jun 13, 2017 at 20:57
  • I have to say that it is very enjoyable to debate this with you fine people. Thank you. The Constitution does explicitly gives the President the responsibility of enforcing the law and the appointment of cabinet members as he sees fit in order to do his responsibility. The Attorney General was brought about by an act of Congress but that law explicitly defines his office as a Cabinet appointment, directly under the President. The DOJ, created a century later is part of the office of Attorney General. Jun 14, 2017 at 10:57

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .