Government

We Are Getting Close To the Point Where Trump Can't Fire His Way Out

Nothing stops. Nothing... do you understand me? Or am I being obtuse?

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This week and every week, much ink and energy is spent wondering how Donald Trump will obstruct justice a second time to end the Robert Mueller investigation. Can he fire Mueller? Will he fire Rod Rosenstein and order his replacement to fire Mueller? What about Jeff Sessions? Will Trump dance a naked tarantella on top of a tactical ICBM to distract the country from his attempts to quash the probe?

Folks, we’re not quite there yet, but we are getting very close to the point where those questions are moot. We’re well past the point of smoke — actual fires have flared up all over the place. The wheels of justice churn slowly, but once they have momentum, they churn inexorably towards a final disposition.

Trump has this idea, rooted in his own narcissism and layman’s understanding of the law, that the administration of justice is led by people. If you think that way, then a decapitation strategy seems plausible: rid Trump of the turbulent priest (Mueller, Rosenstein, whoever), and Trump thinks everything will stop.

But it doesn’t work like that. The administration of justice is led by institutions. Institutions don’t stop just because you fire somebody.

When the Russia probe was contained within an institution Trump could control, like the Department of Justice, Trump probably could have fired enough people to smother the investigation in its crib. There might have been a heavy political price to pay, but legally, if Trump had fired Sessions after Sessions recused himself and fired Rosenstein before Rosenstein appointed a special counsel, then the only exposure Trump would have had would have been the moral conscience of new FBI Director Chris Wray.

But none of that happened. What is happening is that Trump is now besieged on multiple institutional fronts. Trump could fire off Mueller in a Tesla to the moon, but you know who that wouldn’t help? PAUL MANAFORT! That dude’s in court now. He’s been indicted. Paul Manafort can’t go to court and say, “Mueller’s been whacked so… can I go home now?” That’s not how it works. I doubt any of the other prosecutors are going to let their prosecution go just because Mueller was taken out.

Indictments have already been served against other individuals, surely more indictments are being prepared, and we know that Mueller’s team is already planning to write a report about their findings. Even if Trump can stop continued work, all of the work that has already been done doesn’t go away. The work… EXISTS. Trump can try to suppress it, but he can’t blink it out of existence. So you’re talking about a situation where potential crimes are well-known to many federal prosecutors and investigators, but they’re just going to sit on it — forever — because Trump wishes it so? Please. This year, next year, 10 years from now, somebody is going to dust off a binder and resume the quest to bury Jared Kushner or whoever.

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Even if you think that Trump will be successful in dousing Mueller and stamping out the smoldering embers of his investigation… let me introduce you to the terrifying people of the U.S. Attorney’s Office for the Southern District of New York. I used to work in Biglaw doing regulatory defense for large corporate clients. I know actual dragons I’d rather steal gold from than piss off the S.D.N.Y.

The fact that Michael Cohen is now a part of this means that there’s an S.D.N.Y investigation that survives whatever Trump does to Mueller. Remember, much like Sessions, Trump’s hand-picked appointee to head the S.D.N.Y. has already recused himself from Trump matters. So that’s another independent institution that will be looking into Cohen.

Now, we think the Cohen thing right now is just about campaign finance violations and bank fraud. But remember, the S.D.N.Y. is the home district of the Trump Organization. And those lawyers take their responsibility for prosecuting businesses in their jurisdiction very seriously. If Cohen, an idiot who’s been Trump’s fixer for a while now, did something that implicated that broader Trump Organization, the S.D.N.Y. is unlikely to ignore it.

And even if Trump fires everybody, even if he just fires every federal lawyer and replaces every single one with Scott Pruitt, there’s a third institution that Trump has no control over whatsoever: the civil courts.

Michael Avenatti, Gloria Allred, these are lawyers that Trump can’t fire. Their clients — Stormy Daniels and Summer Zervos, respectively — have legitimate cases that have or are likely to survive motions to dismiss. They’re going to GET discovery. So the inquiry into whether Trump misused campaign funds to pay hush money to sexual partners will survive Mueller. The inquiry into whether he has a pattern and practice of sexual assault (towards which his propensity to pay prostitutes to pee on him may or may not be relevant), will survive Mueller. Trump has skirted away from civil trouble time and again by merely paying his way out of it. What happens when his accusers don’t want to take his money?

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Not to sound like Warden Norton, but (potentially) NOTHING STOPS. NOTHING!

I say “potentially” and that we’re “almost there,” because there is one institution that hasn’t yet joined the party: the United States Congress. Paul Ryan and Devin Nunes have decided to do Trump’s bidding in the House. The Senate investigation is stalled. The branch most responsible for checking the president has abdicated its responsibility. Remember, constitutionally there are only two ways to remove a sitting president: impeachment or the 25th Amendment. Trump could go to jail and still serve out the rest of his term as president, should Congress refuse to act.

But… like… I don’t know if you heard this, but Speaker of the House Paul Ryan, is not running for reelection. There seems to be a decent chance that Democrats take control of the House after the midterms. And while 67 votes to convict on impeachment charges in the Senate is a really high bar, if Trump runs around trying to stop everything, it might force Republicans to confront what they all know to be true. Especially since, as I said, there will be reports and evidence that exist now that will find their ways into the hands of GOP senators and their constituents.

Trump isn’t in a ditch, he’s down a well. I don’t think he’s realized the scope of what he’s into now. The loyalty of Jeff Sessions is of no more use to him. The loyalty of James Mattis is what he should be concerned with. Because if Trump really wants to stop all of the investigations into his dealings, he’s going to need the army.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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