President Donald Trump appears more determined than ever to fire special counsel Robert Mueller—despite White House protestations to the contrary. Americans must begin to prepare for the constitutional crisis that will ensue.
There is already considerable speculation about how Congress would react to a replay of the Saturday Night Massacre, when President Richard Nixon ordered his attorney general to fire the Watergate special prosecutor. Senators of both parties have warned the president against dismissing Mueller, some in very strong language (dismissal would cross a “red line” or be “explosive”). Members of Congress would no doubt demand an immediate, serious congressional inquiry into the matters the special counsel is investigating, if not impeachment proceedings based on the dismissal itself. But in light of the current level of intense partisan conflict, it seems more likely that Republican leaders in both houses of Congress would allow Mueller to be fired without consequence, and even defend such a firing.
However, there is another route that may well lead to a showdown between two branches of the government. For months, Mueller and his team have been presenting evidence to a federal grand jury – that grand jury has already indicted two people, and two other former Trump aides have pleaded guilty to lying to the FBI. (And those are the indictments we know of – others may still be sealed.) We ordinarily think of a grand jury as a “decider of fact,” similar to a trial jury. But a grand jury is actually an investigatory body independent of the prosecutor. The grand jury here could continue its work even past the potential dismissal of Mueller and his entire staff, and indeed could draft indictments of senior White House officials or key staff of the 2016 Trump campaign.
Trump can fire Mueller, but he can’t fire the grand jury.
Under the federal rules of criminal procedure, a grand jury is empaneled by a judge and can be discharged only by that judge (or another judge, in case the empaneling judge is removed from the case or is no longer on the bench). Ordinarily, a judge’s decision to discharge a grand jury is ministerial, because the prosecutor defines the grand jury’s “scope of work” – the prosecutor asks the grand jury to issue indictments on particular charges, and the grand jury either does so or doesn’t (though it almost always does, in run-of-the-mill cases). When the grand jury has decided on the charges proposed by the prosecutor, the judge discharges the grand jury.
But that is just ordinary practice, and the events we are contemplating are not ordinary. Last August, Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia empaneled a grand jury to hear evidence from the special counsel. That grand jury would not automatically terminate if Mueller and his team were fired. Legally, the individual U.S. citizens currently hearing evidence from Mueller’s investigation will remain a duly constituted grand jury until Howell discharges them. And Trump does not have the power to order Howell to do so.
In the event Mueller and his team were to be fired, Howell will have a big decision to make.
If she permits the grand jury to continue, she will hardly be acting without precedent. When America’s founders wrote the Constitution, and for 150 years thereafter, it was not uncommon for so-called runaway grand juries to go beyond the prosecutor’s “instructions” in issuing indictments. These runaway grand juries became virtually extinct after the 1930s, when a new law required a prosecutor’s signature before an indictment can be issued.
A runaway jury in the modern era, in a case with these stakes, would put us in uncharted territory. But again: Nothing in the Constitution, or in any statute or rule, would prevent that grand jury from continuing to work or from issuing a report detailing its findings. The requirement that indictments bear a prosecutor’s signature would prevent the grand jury from issuing indictments on its own – but it would be legally possible, albeit wholly unorthodox, for a federal prosecutor other than Mueller (say, any of the nation’s 93 United States attorneys, whether motivated by conscience or ambition) to sign and file an indictment prepared by Howell’s grand jury.
Whether to permit any of that would be up to Howell, as would a host of other decisions about how to proceed. Indeed, if Mueller turns out to be a latter-day Archibald Cox (the Watergate special prosecutor Nixon ordered fired), then Howell will be today’s counterpart to John Sirica. Sirica, who in 1974 held the same position now held by Howell, was the fiercely independent jurist who ordered Nixon to turn over recordings of Oval Office conversations – in effect, declaring that not even the president is above the law.
To follow this train of suppositions to one possible conclusion, we can envision Trump demanding the firing of a prosecutor who is actually in the process of trying one or more of the president’s close associates, on facts that could constitute an impeachable offense.
Of course, Howell’s decisions would soon be appealed to the Supreme Court, as were Sirica’s. While many pundits accuse the court of politicization, we expect that in such an extraordinary situation, the Roberts court would act to protect the Constitution, just as the Burger court did in 1974. It would then be up to Trump to either submit to a Supreme Court ruling or precipitate a true moment of national crisis.
Elected officials, and citizens, should give thought to that scenario, among others, in preparing for the perilous months ahead.