Teri Kanefield @Teri_Kanefield Author, lawyer (U.C. Berkeley). An idealist who believes the American Experiment will succeed. I tweet about the law, books, politics, and history. Nov. 05, 2018 2 min read

(Thread) It looks like people are still worried Trump will try to fire Rosenstein (or Mueller)


Here’s why I don’t think he’ll do it: 6 reasons.

Reason #1: The investigation has gone on too long. The genie can’t go back into the bottle. I'll explain.

1/ Take a hypothetical: Trump fires Rosenstein & puts in someone who follows his orders. The new person starts firing people says “put an end to the entire investigation.” (I know people will raise hell. I'll get to that in a minute)

Q: What happens to the grand jury evidence?

2/ Spoiler: It doesn’t go away; it belongs to the court.

Grand juries (GJ) are in the Constitution, so they’re part of the basic framework of government.

See:  https://www.theusconstitution.org/wp-content/uploads/2018/05/20180521-White-Paper-The-Russia-Investigation-What-Happens-to-the-Grand-Jury-if-Mueller-Is-Fired.pdf 

Originally GJs actually had power to do independent investigations.

3/ Today, “Nothing in the federal rules deprives GJs of their power to investigate and report findings to a district judge, who would have the discretion to release the report to Congress or the public." 👇
 https://www.theusconstitution.org/wp-content/uploads/2018/05/20180521-White-Paper-The-Russia-Investigation-What-Happens-to-the-Grand-Jury-if-Mueller-Is-Fired.pdf 

4/ IOW, what happens to the evidence now in possession of the GJ is up to the judge and GJ.
It’s unlikely they’ll want to bury it.

Reason #2: the SC regs allow Mueller to be stopped by his boss only if “a particular step is inappropriate or unwarranted”
 https://www.law.cornell.edu/cfr/text/28/600.7 

5/ Moreover SC can only be fired for misconduct, dereliction of duty, incapacity, or for other good cause.

As @AshaRangappa_ says, Mueller has more expertise than anyone who might supervise him.

Good luck to whoever tries to fire Mueller without good cause.

6/ I know, I know. Worried people will still say, “But what if Trump still tries?”

Reason # 3: Mueller can hand off the evidence to other prosecutors. Already evidence from Cohen’s office is in the hands of the SDNY—and Cohen overlaps with TrumpRussia and TrumpCrimes.

7/ Destroying evidence isn't something prosecutors do. There are lots of state crimes and crimes other federal offices can pursue.

Reason #4: If we get a Democratic Congress tomorrow, they can open a real investigation.

8/ A Democratic Congress can put together a bi-partisan committee (like with Watergate). Heck, they can have Mueller lead the committee.

The committee would have more power than Mueller has right now.

Trump would end up in worse shape (as he did when he fired Comey).

9/ Reason #5: Firing people would create an acute crisis.

People would take to the streets. There would be an uproar.

This isn't good for Trump. People would stop talking about his manufactured crisis and have a real one to talk about.

He prefers made up ones.

10/ The better strategy is to erode democratic institutions and norms so gradually that most people don't realize what's happening until it's too late.

Even now, most people don't know (or deny) that Trump is cynically using classic fascist techniques to seize and hold power.

11/ An acute crisis wakes everyone up.

Reason #6: Trump has a more effective way to bring about a regime change: Torpedo factuality and rule of law.

What do I mean? See👇


Without rule of law, jury verdicts and investigations pose no threat.

12/ This is why Timothy Snyder says the showdown between Trump and Mueller will be a showdown between "crisis and spectacle" and rule of law.

Trump is preparing for that battle.

What we should worry about (and try to remedy) is the erosion of the public sphere.


You can follow @Teri_Kanefield.



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