The danger in firing Rod Rosenstein

There is an old military adage that, if you only have a hammer, every problem looks like a nail. In the case of President Trump, he has a myriad of options but he seems to constantly reach for the same blunt tool. That much is obvious from the chatter in the White House that Trump is actively looking for someone to fire after the FBI raid on the office and hotel room of his personal attorney, Michael Cohen.

It is a recurring theme throughout the Russia investigation. Now, Steve Bannon, the man Trump has described as someone who “lost his mind,” is reportedly encouraging Trump to fire Deputy Attorney General Rod Rosenstein, stop cooperating with special counsel Robert Mueller, and bunker down for an open fight on executive privilege.

{mosads}It is dangerous advice not only because it could be an unmitigated disaster for Trump, but he might actually do it. Bannon and others know which tool Trump prefers. Despite the catastrophic decision to fire FBI director James Comey, and thereby triggering Mueller’s appointment, various advisers are suggesting that this proven self-destructive tactic might improve with repetition. We have heard it before. Bang, bang, boom.

If Trump is seriously considering firing Rosenstein, or even Mueller, this would be the longest, steepest learning curve in history. Like many, I am no fan of Comey, who I thought could have been legitimately fired when Trump took office and has, since being fired, acted in highly unprofessional ways. Indeed, Comey faces serious contradictions with his prior testimony and may have violated federal laws in his leaking of information to the media.

Moreover, I was opposed to the appointment of a special counsel for months because I failed to see the basis for a specific crime by Trump. That changed when Trump fired Comey after a series of meetings in which he purportedly pressured Comey on the Russia investigation. Reports indicate that the vast majority of top advisers opposed the firing, including Bannon. One exception was Jared Kushner, who supported the ruinous move. That was all Trump needed. Out came the hammer and bang, bang, boom.

I still do not see the criminal case against Trump on allegations like collusion. Had Trump left the investigation alone and allowed Comey to finish it, it likely would have been completed by now without a criminal charge for Trump or close associates. Instead, it has consumed his administration because this was never a nail problem. The idea of many is that Trump could fire Rosenstein and put someone in his place who would be hostile to Mueller and his investigation. While many have noted that Attorney General Jeff Sessions might also resign in protest, that could be an inducement rather than a deterrent for Trump.

The problem is that Trump would have succeeded in recreating Nixon’s “Saturday Night Massacre” without the underlying crime. After a year, there is little direct evidence of a crime by Trump of any kind. However, what evidence has been cited on obstruction is largely due to Trump banging away at this investigation. It is like a guy who bolts every time a car alarm goes off. Police have a reason to pursue. With both houses now at risk of switching parties, Bannon and others are setting up Trump for an impeachment trial. While I still question the basis for either an indictment or impeachment, that will not matter if Trump hands his critics what they most desire: a direct act to curtail or end the Russia investigation.

I have previously written that I view the referral of the Cohen matter to the U.S. attorney for the Southern District of New York to be a threat to Trump because it could induce Trump to make a reckless move. Before the referral, Trump was in a good place legally. His status had not changed, and he was not a target of the investigation. He was listening to counsel and prepping for a sit-down with Mueller on four well-defined points. Now he appears unlikely to do so and could move aggressively into the open, when he should stand still under ample legal cover.

It is no accident that this turn of events is driven, again, by Cohen, the very personification of a blunt tool. Trump appears to like Cohen not for his undemonstrated legal talent but for his demonstrated loyalty. He also is someone who has a long history of threatening people and charging ahead without thinking of the consequences. His decision to activate the arbitration clause in the Stormy Daniels controversy is an example of taking a hammer to your client’s own head. The last place Trump needs to be is in court with a former porn star, litigating one of the worst-drafted nondisclosure agreements ever put to paper.

Now various political supporters in the media want more of the same. It will not work. First, Mueller still would have to be terminated for cause by the attorney general or his designate. If Trump tried to fire Mueller directly, Mueller could refuse to recognize the act under existing regulations and force a court fight. Second, even if the special counsel investigation ended, the Southern District investigation would continue against Cohen. Third, even if Trump combined firings with pardons, all of this evidence likely would be sought by a congressional impeachment committee and could trigger the reinstatement of the Independent Counsel Act.

It would be better to have prosecutors conclude that there was no obstruction or collusion under objective standards of the criminal code. If you force all of this into the impeachment process, members of Congress are allowed to reach their own conclusions on what constitutes a high crime and misdemeanor, including nebulous theories of obstruction. Without the investigation, they would be unburdened by a countervailing finding by the prosecutors.

In the movie, “Thor: Ragnarok,” the Norse god Thor is distraught because he cannot use his signature hammer and his incredulous father, Odin, asks, “What are you, Thor, god of hammers?” The same question could be raised with equal force to Trump. We did not make him “president of hammers.” He has more powerful and sophisticated tools available to him. Of course, Trump can listen to Bannon and others and just bang away, but he may build a criminal case against himself even though there was no original crime. Fire Rosenstein, fire Sessions, fire Mueller, and more nails will appear. In the end, his presidency could end to a familiar cadence of bang, bang, boom.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.