John Yoo: Yes, Trump could end the Mueller probe right now (but he may not want to)

Democrats went ballistic Wednesday with a torrent of attacks on President Trump, saying he may be guilty of obstruction of justice for tweeting that Attorney General Jeff Sessions should end Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election.

The presidential tweet that sparked the furor stated: “..This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 Angry Democrats that are doing his dirty work are a disgrace to USA!”

But despite what President Trump’s opponents say, the Constitution makes clear that the president has the power to order the Justice Department to end any and all investigations he wishes – and the Mueller investigation is no exception.

Article II of the Constitution places the duty to “take care that the laws are faithfully executed” on the president – and the president alone.

It was well understood at the time of the Constitution’s ratification that the president has control over all federal law enforcement. Even creating the post of special counsel – now occupied by Mueller – cannot transfer the president’s power over law enforcement to an entity that lacks accountability to the American people.

To allow anyone else to exercise any aspect of the president’s authority would sap him of “energy in the executive,” as Alexander Hamilton called it. As Hamilton observed in the Federalist Papers – a collection of essays to support ratification of the Constitution – “good government” requires “energy in the executive.” Hamilton wrote that a vigorous president is “essential to the protection of the community from foreign attacks” and “the steady administration of the laws.”

From a constitutional perspective, all other federal law enforcement officers – from the attorney general on down – assist the president in carrying out his constitutional duty. All federal prosecutors are the president’s subordinates.

As James Madison, who drafted the Constitution and led the fight for its ratification, observed: the president enjoys “the power of appointing, overseeing and controlling those who execute the laws.”

Presidents have long directed investigations and prosecutions. George Washington and Thomas Jefferson routinely commanded prosecutors, and John Adams ordered the filing of Sedition Act cases. As a result, President Trump controls the Department of Justice, including all of its prosecutors, “special” or not.

But in this case, President Trump’s tweet is just blowing in the wind. As a matter of presidential statesmanship and political prudence, he would be wise to allow the Mueller probe to reach its conclusion.

Because the Constitution makes him the nation’s chief law enforcement officer, the president has an interest in allowing the machinery of justice to proceed to its natural end.

As far as we know, Mueller does not appear to have uncovered evidence that President Trump conspired with Russian officials to violate any federal laws – conspiracy is a federal crime; collusion is not.

And it appears that Mueller accepts the Justice Department’s view that the department cannot make the president a target of a prosecution.

If Mueller clears President Trump, the special counsel’s finding will carry the greatest national credibility and will allow our nation to move forward to far more important issues of domestic and foreign policy.

Even if President Trump wanted to follow through on his tweet, he addressed it to the wrong person. He cannot order Sessions to end the Mueller investigation, because the attorney general has recused himself from any involvement in that investigation.

Rather than a tweet about ending the Mueller probe, President Trump could try calling Deputy Attorney General Rod Rosenstein, who is serving as acting attorney general and supervising Mueller following Sessions’ recusal.

If the president ordered Rosenstein to fire Mueller, Rosenstein would probably resign, since he was the one who first appointed Mueller. But if Rosenstein didn’t resign the president could fire him for refusing to carry out an order to dismiss the special counsel and end his investigation.

President Trump’s order to fire Mueller would then fall to the No. 3 official at the Justice Department, Solicitor General Noel Francisco, a Trump appointee whose primary job is managing the government’s cases before the Supreme Court.

Francisco would have to decide whether to resign or to order the end of the Mueller investigation. While Francisco would have no constitutional grounds on which to refuse, he would no doubt remember Solicitor General Robert Bork.

Bork fired the Watergate special prosecutor in October 1973 after the attorney general and deputy attorney general at the time resigned rather than carry out President Nixon’s orders to fire the prosecutor. Democrats happily used the incident as ammunition to torpedo Bork’s nomination to the Supreme Court in 1987.

Ordering the end of an investigation would not constitute obstruction of justice under federal criminal law. Importantly, the laws on obstruction do not specifically mention the president – and courts have usually concluded that such laws do not apply to a president’s constitutional acts.

Further, President Trump’s debatable actions are not corrupt beyond a reasonable doubt, as obstruction requires. These include the president’s alleged request to FBI Director James Comey to give lenient treatment to then-National Security Adviser Mike Flynn, his later firing of Comey, and now his tweet calling for an end to the Mueller investigation.

The president may believe in good faith that the prosecutions in the Russia probe are wasting limited federal time and resources and that he had multiple grounds for firing Comey – including Comey’s mishandling of the Hillary Clinton email probe and politicization of FBI investigations.

But if the president’s critics truly believe he has committed obstruction of justice, their remedy will not come from the criminal law, but from the Constitution – which gives Congress the power to remove the president from office through impeachment.

The framers of the Constitution didn’t want the United States to be ruled by a king unaccountable to anyone. They wanted a president to be held accountable for misdeeds, and gave Congress the power to remove the president from office if he has committed “high crimes and misdemeanors.”

Right now, both the Senate and House are probing Russian interference in the 2016 presidential election. These probes have the power to subpoena witnesses and hold public hearings to lay out the facts.

Such hearings are exactly what happened when President Nixon faced impeachment after being accused of obstruction of justice, abuse of power and contempt of Congress in the Watergate scandal. Hearings were also held during impeachment proceedings against President Clinton on charges of perjury and obstruction of justice.

President Nixon resigned before the House could vote on impeachment charges. The House voted to bring impeachment charges against President Clinton, but he was acquitted after a trial in the Senate.

If Congress believes that President Trump has obstructed justice, it can begin impeachment proceedings for “high crimes and misdemeanors.” And despite that phrase, impeachment does not require the president to have committed a crime.

Instead, as Hamilton explained in the Federalist Papers, “high crimes and misdemeanors” include political offenses that proceed from “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

The House and Senate will have to make their own judgments about whether President Trump’s tweet calling for an end to the Mueller investigation – or further action he might take resulting in Mueller’s firing – amount to an offense for which the penalty is removal from the presidency.

John C. Yoo is Heller professor law at UC Berkeley School of Law and a visiting fellow at the American Enterprise Institute, and the author of the new book “Striking Power: How Cyber, Robots and Space Weapons Change the Rules of War.”