Figuring out whether or when President Donald Trump will try to fire special counsel Robert Mueller is Washington’s favorite parlor game of the moment.

The easiest way for Trump to fire Mueller is to order someone else to do it — and the most obvious person to start with is Deputy Attorney General Rod Rosenstein, who stepped in to oversee the federal probe into the Trump campaign’s ties with Russia after Attorney General Jeff Sessions recused himself last year.


When President Richard Nixon tried something similar in 1973, Attorney General Elliot Richardson resigned after refusing Nixon’s demand to fire Archibald Cox, who was investigating Watergate. Richardson’s deputy also rebuffed the order and resigned, leaving then-Solicitor General Robert Bork to ultimately carry out the deed. The bloodletting in the top ranks of the Justice Department came to be known as the Saturday Night Massacre.

Rosenstein said in congressional testimony last year that he would refuse to fire Mueller unless he’d engaged in some misconduct. “I would follow the regulation. If there were good cause, I would act. If there were no good cause, I would not,” Rosenstein told the House Judiciary Committee last December.

But an array of Trump allies — everyone from onetime campaign manager Corey Lewandowski to former strategist Steve Bannon — have urged Trump in recent days to fire Rosenstein, who authorized the raid earlier this week on longtime Trump lawyer Michael Cohen, provoking growing speculation that the deputy attorney general might be on his way out. The president met with Rosenstein at the White House on Thursday.

No matter how it is accomplished, a drive by Trump to oust Mueller could trigger a mass exodus of officials from the Justice Department and of White House lawyers. There is also the risk of a political conflagration in Congress, although it’s still not clear how far Trump can go before a substantial contingent of Republican lawmakers would break with him publicly.

If Trump decides to fire Rosenstein despite the existential risk to his presidency, the resulting vacuum in oversight of the Trump-Russia probe could be filled in different ways.

Mark Wilson/Getty Images

1. Trump could dump Sessions, too

Trump could simultaneously force out Sessions — a frequent target of his angry tirades — and use his presidential authority under the 1998 Vacancies Reform Act to install an acting attorney general who, unlike Sessions, wouldn’t have to recuse from the Russia probe — and could dismiss Mueller.

Evan Vucci/AP Photo

2. Trump could override the established succession plan to replace Rosenstein

Trump could leave Sessions in his role and just replace Rosenstein using the same mechanism, which may allow him to appoint anyone who holds a Senate-confirmed post anywhere in the executive branch — including any Senate-confirmed U.S. attorney or any Cabinet member.

The catch? There have been conflicting opinions about whether the president can override an established succession plan inside federal agencies. In 2001, George W. Bush White House Counsel Alberto Gonzales issued a memo saying the Justice Department’s own succession policies take precedence over presidential decisions, but Justice’s Office of Legal Counsel reversed that view in 2007. That would open up the possibility of legal challenges, including potentially from Mueller himself.

One sign that Trump may be willing to go this route: He already did it in 2017, when he appointed U.S. Attorney Dana Boente as acting attorney general after firing Acting Attorney General Sally Yates, an Obama holdover, for refusing to defend his travel ban order.

Acting associate attorney general Jesse Panuccio isn’t yet confirmed. | Win McNamee/Getty Image

3. Trump could also just follow the Justice Department’s own succession plan.

The first person up would normally be the Justice Department’s No. 3 official, the associate attorney general. (This position did not exist in 1973.)

Trouble is, that position has been vacant since Trump appointee Rachel Brand resigned in February to take a job at Walmart. Because the acting associate attorney general, Jesse Panuccio, isn’t confirmed, he doesn’t have the authority to fire Mueller — and Trump hasn’t even nominated anyone yet to replace Brand.

The next set of potential replacements would come from an order signed in November 2016 by Attorney General Loretta Lynch — though Sessions could change it, he hasn’t.

Under the existing order, those in line to inherit oversight of the Trump-Russia probe are:



Noel Francisco | Mark Wilson/Getty Images

Title: Solicitor General

Name: Noel Francisco

Metadata: When Nixon sought to fire Watergate prosecutor Cox in 1973, the deed was ultimately done by the person serving in this position, Robert Bork. Francisco is a well-respected, experienced Supreme Court litigator who served in the White House counsel’s office and the Justice Department’s Office of Legal Counsel under President George W. Bush. Francisco was confirmed to the solicitor general post, 50-47, last September. He’s a committed conservative who has dutifully defended Trump’s policies in court, but it’s unclear how he would respond if confronted with a presidential demand to fire Mueller.



Steven Engel | Mark Wilson/Getty Images

Title: Assistant Attorney General for Office of Legal Counsel

Name: Steven Engel

Metadata: A former clerk to Supreme Court Justice Anthony Kennedy, Engel served as the No. 2 official in OLC under President George W. Bush. Engel was a partner at the law firm Dechert, before being confirmed by the Senate last November, 51-47.

John Demers | Justice Department photo

Title: Assistant Attorney General for National Security

Name: John Demers

Metadata: Demers served as a top attorney in Justice’s National Security Division in the years after it was created in 2006. He was a top lawyer at Boeing before being confirmed to his current job on a voice vote in February 2018.

Sessions and Brian Benczkowski | Harry Hamburg/AP Photo

Title: Assistant Attorney General for Criminal Division

Name: Vacant

Metadata: Position has been open since the beginning of the Trump administration. Trump nominated former Sessions Senate aide Brian Benczkowski last June and again in January. Acting official is John Cronan.



Jody Hunt and Sessions | Susan Walsh/AP Photo

Title: Assistant Attorney General for Civil Division

Name: Vacant

Metadata: Position has been open since the beginning of the Trump administration. Trump nominated Sessions’ former chief of staff, Jody Hunt, last December and again in January. Acting official is Chad Readler.

Title: Assistant Attorney General for Environmental and Natural Resources Division

Name: Vacant

Metadata: Position has been open since the beginning of the Trump administration. Last June, Trump nominated a former No. 2 in Justice’s environmental division under President George W. Bush, Jeffrey Clark. He was renominated in January. Acting official is Jeffrey Wood.

With the Justice Department’s succession list exhausted, the provisions of an executive order Trump issued in March 2017 would kick in, offering up a new list of potential stand-ins.

Title: U.S. Attorney for the Eastern District of Virginia

Name: Vacant

Metadata: Dana Boente, a holdover from the Obama administration, served in this position through late January, when he moved over to become general counsel at the FBI. Trump has not nominated a replacement. Acting official is Tracy Doherty-McCormick.

Title: U.S. Attorney for Eastern District of North Carolina

Name: Robert Higdon Jr.

Metadata: Higdon was nominated by Trump last August and confirmed to the job the following month. A longtime Justice Department prosecutor in Washington and North Carolina, Higdon was co-lead counsel for the government in the 2012 trial of former Sen. John Edwards (D-N.C.) over alleged campaign financial violations related to payments directed to a woman he secretly had an affair with. Jurors acquitted Edwards on one count and deadlocked on five others.

Title: U.S. Attorney for the Northern District of Texas

Name: Erin Nealy Cox

Metadata: Trump nominated Cox to this post in September. She was confirmed in November. Cox previously worked as a prosecutor in the same office and later served in the Justice Department’s Office of Legal Policy under President George W. Bush. Cox also did stints working for consulting firms Stroz Friedberg and McKinsey & Co.

The consequences

Any of these moves would almost certainly guarantee an immediate political backlash, and Trump would likely face a legal imbroglio if Mueller or others challenge his dismissal in court.

Even without Mueller, the Russia investigation and prosecutions could continue, through other Justice Department channels — including the Southern District of New York, which oversaw the Cohen raid this week.

If Trump managed to shut down those investigations, state attorneys general like New York’s Eric Schneiderman might reactivate their currently dormant inquiries into the actions of Trump and his associates.

A removal of Mueller could also spur Congress to act, possibly through legislation aimed at restoring him to his post, although that, too, would face legal uncertainty. Or Trump could face the worst-case scenario: impeachment. That, in turn, might prompt him to again follow in Nixon’s footsteps and choose resignation.