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The significance of Trump’s reported order to fire Mueller

President Trump reportedly ordered the dismissal of special counsel Robert Mueller last June, but backed down after White House counsel Don McGahn said he would quit rather than carry out the order, according to The New York Times and others. In Davos, the president dismissed the report as "fake news." John Yang reports and Judy Woodruff talks to Jack Goldsmith of Harvard Law School.

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  • Judy Woodruff:

    Now- the reports that President Trump moved to fire special counsel Robert Mueller last summer, but ultimately decided against it.

    John Yang fills us in.

  • John Yang:

    In Davos this morning, President Trump dismissed the report with a favorite phrase.

  • President Donald Trump:

    Fake news, folks, fake news. Typical New York Times fake stories.

  • John Yang:

    The Times was the first to report that Mr. Trump ordered Mueller’s dismissal in June, but backed down after White House counsel Don McGahn said he would quit rather than carry out the order. At the time, there were reports that Mueller had begun looking into a possible obstruction of justice case over the firing of FBI Director James Comey.

    On June 12, Trump confidant Christopher Ruddy gave Judy Woodruff one of the first public indications of the president’s intentions.

  • Judy Woodruff:

    Is President Trump prepared to let the special counsel pursue his investigation?

  • Christopher Ruddy:

    Well, I think he’s considering perhaps terminating the special counsel. I think he’s weighing that option.

  • John Yang:

    Three days later, Mr. Trump said- “They made up a phony collusion with the Russians story, found zero proof, so now they go for obstruction of justice on the phony story. You are witnessing the single greatest witch-hunt in American political history, led by some very bad and conflicted people.”

    The Times reports Mr. Trump argued that Mueller had conflicts of interest. Among them, what the president said was a dispute over membership fees at the Trump National Golf Course in Northern Virginia, where Mueller had been a member. A Mueller spokesman denies there was a dispute.

    Soon afterward, the president changed both his legal team and his attitude toward Mueller, denying ever considering firing him.

  • President Donald Trump:

    I haven’t given it any thought. I mean, I have been reading about it from you people. You say, oh, I’m going to dismiss him. No, I’m not dismissing anybody. I mean, I want them to get on with the task.

  • John Yang:

    Today, Democratic Senator Cory Booker of New Jersey told PBS member network NJTV that he fears Mr. Trump could still try to fire Mueller.

  • Sen. Cory Booker:

    I have a lot of concerns, but for the constraint of the law, that this is a man that would be doing much more to suppress this democracy and assert authoritarian rule. And so we need to have checks and balances.

  • John Yang:

    Last summer, Booker introduced a bill to protect Mueller. His co-author is South Carolina Republican Lindsey Graham.

  • Sen. Lindsey Graham:

    Any effort to go after Mueller could be the beginning of the end of the Trump presidency, unless Mueller did something wrong.

  • John Yang:

    The measure has been stalled in the Senate, but could get a boost from this latest disclosure.

    For the PBS NewsHour, I’m John Yang.

  • Judy Woodruff:

    And to explore this further, I’m joined by Jack Goldsmith. He is a professor at Harvard Law School and co-founder of Lawfareblog.com. He served as assistant attorney general for the Justice Department’s Office of Legal Counsel during the George W. Bush administration.

    Jack Goldsmith, welcome back to the NewsHour.

    First of all, your reaction to the news reports that the president did try to fire, at least wanted to fire Mr. Mueller.

  • Jack Goldsmith:

    That part of the story is not surprising, as you were the one that solicited from Mr. Ruddy that Mr. Trump was thinking about that last summer, so that part is not that surprising.

    The piece of news was that Don McGahn, the White House counsel, refused to carry out the order of Mr. Trump to tell the Justice Department to fire Mueller and threatened to resign as a result.

  • Judy Woodruff:

    You’re saying the fact that McGahn stepped in and the president thought better of it, changed his mind matters more. Why is that significant?

  • Jack Goldsmith:

    It’s significant for a couple of reasons.

    First, it shows that people in the White House, including those closest to the president, thought it would be a disaster for the president — that’s the way The New York Times reported it — if he fired Mueller.

    And, second, and I think most importantly, it shows how very difficult it would be, in fact, for the president to fire Mueller. If senior aides close to him like Don McGahn are willing to resign to prevent that from happening — and we don’t quite know what his motivations are — that suggests that the president is not going to be able to find somebody to carry out, or it’s going to be very difficult to carry out any attempt to fire Mueller.

    And, moreover, that happened seven months ago. The president has new lawyers since then. He, at least in his public pronouncements, has seemed to have calmed down about Mueller.

    One way of looking at it is that there was resistance in the White House of this happening and that it’s going be harder for Trump to do this than we might have thought.

  • Judy Woodruff:

    Would it have been obstruction of justice if the president had fired — had asked others to fire Robert Mueller?

  • Jack Goldsmith:

    There’s been a lot of loose talk about that, but I try to resist that conclusion, because you have to determine whether the president acted with a corrupt intent to act to impede the investigation, and there are some suggestions, a lot of suggestions that he did.

    But he’s also basically said that he thinks that the investigation is a witch-hunt and baseless. And it’s conceivable that he didn’t form the requisite intent. I think that, also, the focus on obstruction of justice, on the criminal standard I just articulated is a little misleading, because I don’t think Mr. Mueller — I think it’s very unlikely he’s actually going to indict the president under that criminal standard.

    So I think we have been unduly focused on that criminal standard, and I think it’s too hard to tell right now if he actually violated the statute in any event.

  • Judy Woodruff:

    Why do you think it’s unlikely he would try to indict the president under obstruction of justice?

  • Jack Goldsmith:

    Lot of reasons. There is actually Justice Department legal opinion saying that a president, a sitting president, can’t be indicted.

    It’s probably the case, although there are some arguments against it, that Mueller is bound by that. The person who supervises him, Rosenstein, would probably insist on that.

    Moreover, it’s hard to see why it’s in Mueller’s interest to proceed that way, as opposed to collecting whatever evidence he has and then turning it over to Congress through some mechanism and letting Congress and the American people decide for themselves.

    I just think there are a lot of legal hurdles to him indicting, and it muddies the focus on what actually happened.

  • Judy Woodruff:

    Is there anything else the president could do to stop this investigation at this point?

  • Jack Goldsmith:

    He could still — it’s conceivable that he could find someone in the Justice Department. It would have to be Rosenstein at first, who is the deputy attorney general and therefore the acting attorney general for these purposes, because the attorney general recused himself.

    It’s still conceivable that Trump could order that to happen. I think that’s less likely now that we know that McGahn stood up to him. I think Rosenstein would probably resign. I think a lot of people would resign.

    But it’s still conceivable that Trump could find someone to fire Mueller at some point, if he insisted on it, but I don’t think that ends the investigation. The investigation doesn’t end. And there would be enormous pressure to find someone else.

    Just as the Trump firing led to Mueller, a Mueller firing would lead to someone else. I think it’s very difficult as a practical matter for the president to shut down the investigation.

  • Judy Woodruff:

    What does all this reporting tell you, Jack Goldsmith, in terms of the White House counsel saying, I’m going to quit if you do this? There have been other threats to resign from others high up at Justice, we know.

    There’s just a lot of clear disagreement, turmoil. What does all that say to you?

  • Jack Goldsmith:

    It suggests that it’s very hard to work for President Donald Trump.

    We have had Chris Wray, a report about Chris Wray, the FBI director, this week threatening to resign. There have been stories in the past about the attorney general and the deputy attorney general. The president is mercurial and he engages in self-destructive actions and he engages in actions that violate norms of independence that makes it extremely difficult for people to work under him.

    And at some point, when he’s pushing the envelope, the only leverage they have is to resign or threaten to resign. Every instance so far, the president’s backed down. And there’s actually a somewhat happy story here, in that despite these extraordinary attacks by the president, despite his attempts to impede the independence of the Justice Department and the FBI, they seem to have resisted successfully so far.

    And the story today and yesterday is that Don McGahn assisted in that by drawing the line inside the White House.

  • Judy Woodruff:

    But, meantime, the president, some of the people around the president, his allies, certainly Republicans on Capitol Hill are trying in a number of different ways to undermine, call into question the credibility of the Justice Department, the FBI.

    What do you make of those efforts? Do you think they could seriously end up weakening the FBI?

  • Jack Goldsmith:

    So, the main thing that’s going on that’s causing this is the House Intelligence Committee and, in particular, the head of the House Intelligence Committee on the Republican side Mr. Nunes, who has an alleged memo that supposedly has evidence that the investigation — the initiation of the investigation into Mr. Trump last summer was illegitimate for a variety of reasons.

    And there have been relentless attacks on the FBI for that, for illegality in investigating the president, the memos of the two people — excuse me — the text messages which supposedly showed they were political, the charge that the FBI has been politicized and is out to get the president.

    These are extraordinary charges coming from the president and in the House, some members, Republican members of the House, and they definitely have a demoralizing impact on the FBI. And I think they’re definitely designed to delegitimate the investigation.

    And I think that they have gained more traction, especially in the House among Republicans, and certainly in conservative media circles in the last few months. And so how successful they will be, we don’t know yet.

    But push will come to shove if and when Mueller is either fired or he issues a report to Congress that requires Congress to do something. And then we will see how much support the president will have and how much Republicans will insist on doing the right thing in the sense of — in the sense of making sure that the investigation is carried through to the end.

  • Judy Woodruff:

    The story goes on.

    Jack Goldsmith, thank you very much for joining us.

  • Jack Goldsmith:

    Thank you very much.

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