A pair of DC lawyers just explained how the president’s burning desire to fire Special Counsel Robert Mueller would probably backfire in the worst way possible.
John N. Tye and Mark S. Zaid run Whistleblower Aid, a key non-profit legal resource for Americans in government who have information about corruption in the Trump Administration and risk their livelihoods to inform the public. In a case earlier this year, a whistleblower they serve exposed a coal baron’s corrupt, multi-million dollar hug with Trump Energy Secretary Rick Perry.
The two attorneys just explained in a New York Times op-ed column that if President Trump fires Special Counsel Mueller without just cause, it could instantly turn him into the world’s most recognizable whistleblower. More importantly, Mueller would still be able to report his information to Congress in a way that will make it certain to reach the public. They wrote:
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The moment he was dismissed, Mr. Mueller could lawfully take all the evidence he had collected — even the most highly classified materials — straight to Congress. If he personally lost access to the evidence, a remaining member of the Office of Special Counsel could do the same.
If the evidence safely reached Congress, the president probably could not contain it. The 37 members of Congress on the House and Senate Intelligence Committees, as well as their staffs, are authorized to receive the most sensitive of classified information. Committee members from both parties — not just the Republican majority — would get access.
According to the pair, so long as the Congressmen disclose Mueller’s information during the course of speech and debate on the floor of the House or Senate, they could use their unique constitutional immunity for their acts of disclosure to avoid prosecution for disclosure of classified materials.
They also pointed out that Special Counsel Mueller could use Freedom of Information Act inquiries (also known as FOIA requests) to obtain key records, and file suit if the government withholds critical records or they have been destroyed.
Lastly, even though Mueller’s investigation undoubtedly encompasses a wealth of information, Tye and Zaid explained that if fired, the Special Counsel could submit an article to the Department of Justice seeking permission to publish. They wrote:
If the department insists on redacting even one word, Mr. Mueller could sue to enforce his own First Amendment rights to communicate with the American people on matters of public concern.
Other attorneys have speculated that Special Counsel Mueller could protect the investigation by using a prosecutorial device akin to a “dead man’s switch.”
Under that theory, Mueller would file a secret or sealed criminal indictment now, which would require permission from Deputy AG Rosenstein and then a federal judge, which could only be dismissed by a judge later if he’s removed from the case.
“The President should proceed very cautiously when it comes to any thought of terminating Robert Mueller or dismantling the Office of Special Counsel,” attorney Mark S. Zaid told us exclusively at Washington Press, “It may be that in doing so he creates a tidal wave of events much more powerful than exists currently.”