On October 6th, after Brett Kavanaugh was confirmed to the Supreme Court, Donald Trump sent out the following tweet:
You don’t hand matches to an arsonist, and you don’t give power to an angry left-wing mob. Democrats have become too EXTREME and TOO DANGEROUS to govern. Republicans believe in the rule of law – not the rule of the mob. VOTE REPUBLICAN!
— Donald J. Trump (@realDonaldTrump) October 7, 2018
Many people have concluded that this tweet was in reference to the people who traveled to Washington D.C. to protest the confirmation of Brett Kavanaugh. But Trump issued this tweet after Brett Kavanaugh had been confirmed. This tweet was obviously meant for his supporters, and most likely meant to ensure his supporters saw protesters as an “angry left-wing mob”, but which protesters? Trump had already won support for his Supreme Court nomination, so why would it matter at that point what Trump’s supporters thought about the Kavanaugh protesters? That protest had already failed. Instead, it is quite likely that Trump was referring to a new batch of protesters he sees on the horizon. And, the news that broke this morning points to just which protesters he is expecting:
Rod J. Rosenstein, the deputy attorney general, and President Trump planned to travel to Florida together on Air Force One Monday morning, a week and a half after the two were scheduled to discuss remarks Mr. Rosenstein had made about the president’s fitness for office and an offer to secretly tape conversations with him.
Remember, this meeting with Rod Rosenstein was supposed to have taken place on Thursday, September 27th, but was cancelled once it became clear that Brett Kavanaugh’s confirmation was in serious danger. After Brett Kavanaugh was confirmed, the meeting was immediately rescheduled. Why would that be? It all goes back to the story that broke on September 21st about Rod Rosenstein, a story that was likely given to the New York Times by the Trump White House so it could serve as pretext to fire Rod Rosenstein, which in turn would lead to Trump attempting to shut down the Mueller investigation:
But, there are couple points to this story that don’t make sense. The 25th amendment allows for the President’s cabinet to remove him from office if he is deemed unfit to further fulfill his or her duties. Rod Rosenstein, however, is not a member of Trump’s cabinet. So, why would he be discussing a process by which he would have no control over, or even ability to participate in? Also, the story says Rod Rosenstein discussed this alleged strategy less than two weeks on the job. Are we to believe that not only would he discuss a strategy with which he could not even take part, but also that he would do this less than two weeks on the job?
For his part, Rod Rosenstein has issued a strong denial of this story.
Rosenstein called the story “inaccurate and factually incorrect.”
He continued: “I will not further comment on a story based on anonymous sources who are obviously biased against the department and are advancing their own personal agenda. But let me be clear about this: Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.”
It seems clear from his response, though, that Rod Rosenstein knows what is behind this story. He knows it is an attempt by Trump to discredit him, likely to use as an excuse for Trump to fire him.
With Trump’s campaign manager Paul Manafort having entered into a cooperation deal with the Mueller investigation, and new reports that Michael Cohen has been having lengthy discussions with the Mueller investigation that involves relaying information related to collusion with Russia, Trump no doubt sees that if he is going to make a last ditch attempt at stopping the investigation, no matter how futile and illegal, now is the time.
This also explains Trump’s continued public comments discrediting his Attorney General Jeff Sessions. Trump’s actions towards both Rosenstein and Sessions stem from the fact that Trump cannot directly fire Robert Mueller and stop the Mueller investigation. Jeff Sessions cannot do that either, as he has already recused himself. And Rod Rosenstein, from all accounts, will refuse to do so, if asked. If Trump were to attempt to shut down the Mueller investigation, he has 3 options:
- Trump can fire Jeff Sessions and try to replace him with an Attorney General who will not recuse himself from the investigation, and will fire Robert Mueller.
- Trump can pressure Jeff Sessions to resign, then replace him with an Attorney General who will not recuse himself from the investigation, and will fire Robert Mueller.
- Trump can fire Rod Rosenstein, then replace him with a Deputy Attorney General who will fire Robert Mueller.
All three of these options seem fairly unlikely to work for Trump, but it sure looks like he is trying. The problem with option 1, firing Jeff Sessions, is that it would be very difficult to come up with a reason that does not look like the purpose was to impede the Russia investigation, which would make it very difficult for Trump to be able to get a new Attorney General confirmed by the Senate who would impede the Russia Investigation. The problem with option 2, pressuring Jeff Sessions to resign, is that he has been doing this for many months and Jeff Sessions shows no sign of bending to that pressure. The problem with option 3, firing Rod Rosenstein, is that he would need to find a replacement who would fire Robert Mueller.
But, there could be a way for option 3 to work for Trump. If he does not name a replacement for Rod Rosenstein, oversight of the Mueller investigation would go to the solicitor general, Noel Francisco, who, while not making known if he would fire Robert Mueller himself, has argued in the past that the President can fire anyone in his administration and may use that argument to deem it is within Trump’s right to fire Robert Mueller.
Francisco points to two provisions of the Constitution as giving the president very broad authority. One says the president shall appoint ambassadors, judges and “all other officers of United States.” The other says the president “shall take care that the laws be faithfully executed.”
”The president’s constitutional responsibility to faithfully execute the laws requires adequate authority to remove subordinate officers,” Francisco told the court in February. “The framers understood the close connection between the president’s ability to discharge his responsibilities as head of the executive branch and his control over its personnel. … The president’s ability to execute the law is thus inextricably linked to his authority to hold his subordinates accountable for their conduct.”
Francisco is basically saying the Constitution gives the president the authority to dismiss all officials who have power under the executive branch. That could, most conspicuously, give Trump a legal way to oust Mueller.
This makes option 3, firing Rod Rosenstein, look like it is perhaps the best remaining option available to Donald Trump to shut down the Mueller investigation, which he likely now sees as an absolute threat to his Presidency now that Paul Manafort and Michael Cohen are cooperating.
The fact that the meeting with Rod Rosenstein appears to have been dependent upon the confirmation of Brett Kavanaugh to the Supreme Court makes this prospective path of action by Trump seem all the more plausible. Why? Because legal justification for Trump to follow this course of action (firing Rosenstein, then firing Mueller) lacks precedent, which could lead to a legal challenge that ends up being decided by the Supreme Court. If it goes to the Supreme Court, Brett Kavanaugh could end up being the deciding vote. Guess what Brett Kavanaugh previously stated about his opinion of a President firing a special counsel:
In a 1998 article in the Georgetown Law Journal, Kavanaugh wrote that Congress should give the president the ability to fire special counsels, an opinion that Democrats have highlighted in the hours since he was nominated Monday evening.
Besides a possible Supreme Court decision involving Trump’s attempt to shut down the Mueller investigation, there is another possible deterrent: mass protests, of which there is already planning in the works:
Donald Trump could be preparing to put himself above the law. We won’t allow it.
Trump will create a constitutional crisis if he fires special counsel Robert Mueller or Deputy Attorney General Rod Rosenstein, who oversees Mueller, or attempts to compromise the investigation by other means. (See The Plan for details.)
Our response in the hours following a potential power grab will dictate what happens next—whether Congress will stand up to Trump or allow him to move our democracy toward authoritarianism.
That’s why we’re preparing to hold emergency “Nobody Is Above the Law” rallies around the country, in the event they are needed—900+ of them and counting, in every state, with 400,000 RSVPs to date!
Donald Trump appears to be keenly aware of these mass protests that will erupt should he take the step of firing Rod Rosenstein, then attempting to fire Robert Mueller. He is likely preparing his base of supporters to see these protests as an angry mob. He could also be paving the way for these protests to be shut down by law enforcement. If there is one thing that has been shown to be abundantly clear by Donald Trump’s rhetoric, he has no problem following a fascist playbook, and violently shutting down protests is part of the fascist playbook. That could very well be why he has already started the process of labeling the protests he wants to shut down as an “angry left-wing mob”.