Did Trump Try to Fire Mueller?

The allegation in the Mueller Report that has gotten the most media play is President Trump’s supposed attempt to fire Robert Mueller from his position as special counsel. It is commonly said that Trump “tried” to fire Mueller. For example, the Washington Post headlines: “The Trump team still maintains Trump didn’t try to fire Mueller. Mueller disagrees.” The New York Times headlines: “Trump sought to fire Mueller in December.” USA Today: “Donald Trump denies he tried to fire Mueller, disputing account from a former senior White House aide.” But in my view, these characterizations are not supported by what Mueller says Don McGhan told him.

First, as Yoda might say, there is no “try.” President Trump had the legal power to fire Mueller as special counsel. It makes no sense to claim that he “tried” but failed to do so. Trump could have fired Mueller, but he didn’t.

Second, McGhan’s testimony, as described in the Mueller Report, does not support that characterization:

On Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed. McGahn was at home and the President was at Camp David. In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel.

On the first call, McGahn recalled that the President said something like, “You gotta do this. You gotta call Rod.” McGahn said he told the President that he would see what he could do. McGahn was perturbed by the call and did not intend to act on the request.

And again:

When the President called McGahn a second time to follow up on the order to call the Department of Justice, McGahn recalled that the President was more direct, saying something like, “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.” McGahn recalled the President telling him “Mueller has to go” and “Call me back when you do it.”

If the quotes attributed to McGhan are correct, it appears that President Trump directed him to try to persuade Rod Rosenstein that Mueller had a conflict and should be discharged as special counsel–not that McGhan himself should fire Mueller or order Rosenstein to do so, something that the White House counsel would not have the power to do. Thus, McGhan’s response that he “would see what he could do” was appropriate.

The Mueller Report says, initially, that “[o]n Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed.” But if you keep reading, that description is wrong. Rather, Trump “directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel.” Trump told McGhan to make an argument to Rosenstein, not to deliver an order to Rosenstein. Mueller gets it right the second time when he refers to the president’s “order to call the Department of Justice.”

Whether Mueller had a conflict of interest that should have disqualified him from serving as special counsel is hotly debated, but in any event, it was not unreasonable for President Trump to hold the view that he had a conflict. Nor was it unreasonable for him to consider it possible that Rosenstein could be persuaded that that opinion was correct. I don’t see anything wrong with dispatching his White House counsel to take the matter up with Rosenstein.

It also should be noted that discharging Mueller on the ground of a conflict would not have terminated the Russia collusion investigation (just in case you had forgotten what it was that Mueller was supposed to be investigating). If Rosenstein had removed Mueller on the ground of a conflict, he would have appointed a different special counsel and the investigation would have continued.

President Trump tweeted on this story this morning:


Trump’s comments are, I think, correct.

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