How Trump Could Turn the Mueller Probe into a Constitutional Crisis

In the end, the genuine reason why firing Mueller would present a constitutional crisis is because enough people say it would.

May 17, 2018

If there was ever a real crisis actor, it would be Robert Mueller, who today celebrates his first anniversary as Special Counsel investigating Russian interference in the 2016 election. And by crisis actor I mean someone who acts graciously in a crisis.

One year ago, Mueller was appointed to his post in the midst of two crises: one President Trump precipitated by firing FBI Director James Comey, and the other a crisis of institutional leadership at the Justice Department following news that Attorney General Jeff Sessions had been less than forthcoming about his interactions with Russian actors.

Mueller has since weathered a number of near-firing crises. In the last year, Trump has apparently come close to firing Mueller twice — once in June and again in December last year — and six times has unleashed waves of anxiety, usually via Twitter, that he was about to fire him.

Meanwhile, almost every indictment or revelation stemming from Mueller’s efforts drops like a bomb: the President’s personal lawyer’s house and office are raided by the FBI; his former campaign manager and national security advisor are indicted; the Special Counsel is circling the question whether the President obstructed justice. Each of these must likely provoked mini crises or at least major meltdowns in the White House.

There are a lot of crises in America today. We have an opioid crisis, an infrastructure crisis, an affordable housing crisis, a healthcare crisis, a campus free speech crisis. And, as of this week, according to former Secretary of State Rex Tillerson, a crisis of “ethics and integrity.”

But do we have a constitutional crisis, as well?

A lot of people think we’re edging close to one – and that Mueller would play a pivotal role in it. Fire him, and we’re in a constitutional crisis according to a bevy of Senators, including some Republicans. Don’t fire him, and Mueller can trigger a crisis if he tries to force the President to testify, tries to indict him, or issues a report that calls for his impeachment.

But no one really knows if any of those scenarios would be constitutional crises because no one knows how to define one. Sadly, there is no tribunal for the adjudication of semantics disputes to help. (I’m working on it.)

But some people have tried.

In the wake of President Clinton’s impeachment, Princeton political scientist Keith Whittington surveyed American history and concluded there were two types of constitutional crises: “operational crises and crises of fidelity.” The former occurs when the constitution offers no roadmap for dealing with a political dispute — think Mueller indicting a sitting President. The latter takes place when the constitutional order is clear but people nevertheless flout it, usually for political or personal advantage — think the refusal of the Senate to consider President Obama’s nominee to replace Justice Antonin Scalia.

The ever helpful Fivethirtyeight.com concluded that there are four types of constitutional crisis: when the Constitution doesn’t say what to do; when the Constitution’s meaning is unclear; when the Constitution says what to do, but it’s “not politically feasible; and when institutions themselves fail.

Yale’s Jack Balkin puts it a bit more dramatically. It “means that the Constitution is no longer able to keep disagreement within politics; as a result, people go outside the law and/or turn to violence or insurrection.”

None of this explains why so many people, Democrat and Republican alike, think that firing Mueller would be a constitutional crisis. After all, Trump has sacked many people during the course of his presidency. What makes Mueller so special?

Firing Mueller would initiate a constitutional crisis because it would violate a remarkably simple, bedrock constitutional principle: No President is above the law. Even Trump seems to understand, if not necessarily embrace, the concept. His attacks on Mueller — from asserting he is spending too much, taking too long, veering off course, showing bias, etcetera — exhibit a guilty conscience, a knowledge that a bald firing would be too much.

Merriam-Webster’s defines a crisis as “an unstable or crucial time or state of affairs in which a decisive change is impending; especially: one with the distinct possibility of a highly undesirable outcome.” If Trump dismisses Mueller and faces no consequences our democracy will have suffered a terrible body blow. And not just because the President would have abused his power to protect himself personally, but because the restraints keeping him from using law enforcement as a personal plaything would be lifted.

In the end, the genuine reason why firing Mueller would present a constitutional crisis is because enough people say it would. They are prepared to make it a crisis. Crises happen when we say so or, more importantly, when we act like they are happening.

The alternative to a constitutional crisis is a continuation of what Belkin calls constitutional rot -- our Trumpian era of corrupt, oligarchical politics where “shared criteria of reasoning, good faith attempts at deliberation, and mutual accommodation between political opponents” are eroding rapidly.

With one year’s work under his belt today, Robert Mueller shows no sign of declaring mission accomplished or giving up his government paycheck any time soon. Having already secured five guilty pleas, he still has three pending indictments — two involving former Trump campaign manager Paul Manafort and one regarding a cluster of Russian nationals and organizations accused interfering with the 2016 election. No one knows whether he has filed other sealed indictments.

Mueller’s second year on the job is likely to be even more momentous than his first. He is preparing to square off against the President over whether he will be deposed. He is preparing a report on the President. Meanwhile, the pressure on Trump grows day by day as a result of Michael Cohen’s legal messes. Our next crisis can’t be too far away.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.