Well, He Does Say "You're Fired" a Lot...

I just really like this picture of Mueller. It's like he's silently judging you.
Source: fbi.gov (archived)

So, Donald Trump doesn't seem to like Special Counsel Robert Mueller very much. For the past few days, he's has been more critical than usual of the Special Counsel's investigation into Russian interference and the Trump campaign's potential collusion. This has reinvigorated fears that Mueller might be fired. But can Trump actually fire him? And what happens if he does? That's what I'll try to answer today.

First, we have to understand exactly what a Special Counsel is, and how one is appointed. A Special Counsel is a kind of special prosecutor; in other words, an independent investigator appointed because the person or body who would normally handle the investigation (in this case, the Department of Justice) has a significant conflict of interest. Mueller operates out of the Department of Justice's Office of Special Counsel, and the order establishing his investigation is handily linked on its webpage. Deputy Attorney General Rod Rosenstein, who issued this order, was nice enough to mention the applicable section of US regulations: US Code of Federal Regulations, Title 28, Chapter VI, Part 600. These regulations, in fact, govern nearly every facet of the Special Counsel, and I will be citing them throughout.

Section 600.1 specifies two criteria for the appointment of a Special Counsel: first, that "investigation or prosecution... would present a conflict of interest for the Department [of Justice]," and second, that "it would  be  in  the  public  interest  to  appoint an outside Special Counsel." This is why Special Counsels are so often appointed to investigate presidents; the Attorney General would have a clear conflict of interest if they had to investigate their own boss. And, in this case, the second requirement is easily fulfilled by the need to both protect our democratic institutions from Russian meddling and settle the controversy surrounding the Trump campaign's potential crimes.

Now that we know what a Special Counsel is, we can find out how one is fired. This information isn't too hard to locate; section 600.7 lays it out pretty clearly. Only the Attorney General or acting Attorney General can fire the Special Counsel, and "good cause" is required for the firing. Rosenstein doesn't see any good cause for Mueller's removal; earlier this month, he said, "I don't believe there is any justification at this point for terminating the special counsel."

Of course, Trump could just fire Rosenstein, and he has the power to choose a different Department of Justice senior official to act as Deputy Attorney General under the Federal Vacancies Reform Act. He could, in theory, just keep firing people until he found one willing to fire Mueller. A lot of you probably recognize this strategy: it's the one Nixon used in his infamous Saturday Night Massacre. It didn't work well then, and I don't think it would work well now. Why? The way I see it, there are four reasons.

First is the fact that getting rid of Mueller does not get rid of the investigation. There is still a Senate Intelligence Committee investigation underway, which was, according to Reuters, "not close to ending" in January. And if Mueller is fired, then Congress still has the authority to appoint a new special prosecutor. Of course, this hinges on Republicns in Congress prioritizing the investigation over Trump, which isn't exactly a foregone conclusion, especially considering that the House Intelligence Committee just closed their own scandal-ridden investigation in a party-line vote.

Second is the potential for obstruction of justice. If Trump takes actions to get rid of Mueller, and Mueller was investigating him, that's pretty clear-cut obstruction of justice, right? Well, it's not quite that simple. Trump would need to be taking those actions with corrupt intent; in other words, he would need to actually be trying to cover up a crime.

The information we have now isn't enough to prove that; for as desparate, disingenuous, and, frankly, just damn annoying his tweets of "WITCH HUNT" are, all they really tell us is that he thinks the Mueller investigation is baseless. If it really is baseless, then he didn't commit any obstruction. Hooray for him. But if this or any future investigation shows that there was collusion, then firing Mueller would be a pretty clear-cut case of obstruction.

Third is the optics. Even if Trump suffers no legal consequences, even if he really is innocent and the probe really was just a witch hunt, firing the person investigating you just isn't a good look. When Trump fired Comey, it made me eagerly await a CSpan broadcast for the first time in my life, and if that could do that, then this could do almost anything. Already, the Washington Post reports that hundreds of thousands of people have signed up online to protest across the country should Mueller be fired.

And fourth is the potential for leaks. Mueller is running an extremely tight ship with his investigation; many of the announcements that came out of it, from the indictment of Manafort and Gates to Papadopoulos' guilty plea, caught both myself and the press entirely by surprise. Should Mueller be fired, the investigators who worked with him would no longer have any disincentive for leaking information to the media; in such a case, we might get to hear of some of the more salacious findings of the investigation.

Of course, if Trump really is innocent, he only has to worry about the hit to his image. But if that were the case, he also shouldn't be worried about Mueller, who is by every measure extremely professional. And if he's guilty, then he's pretty much screwed either way. So if you ask me, Trump shouldn't fire Mueller.

So what will Trump actually do?

I don't know.

Nobody knows.

He's Trump.

He doesn't make any sense.

Thanks for reading.

The Classifieds

Source: Wikimedia Commons

Earlier this week, Jared Kushner's security clearance was downgraded from top secret to secret. What, exactly, does that mean?

First, we must understand how the United States' security clearance system works.

The current system by which the United States government classifies information is stated in Executive Order 13526. It was signed on December 29, 2009, by Barack Obama. It should be noted that this executive order did not establish our classification system, but is instead the latest in a series of executive orders, each of which has modified the system slightly. The system was originally established by Bill Clinton in 1995 through Executive Order 12958.

The system laid out in Executive Orders 12958 and 13526 uses three levels of classification: confidential, secret, and top secret. Information is categorized into these levels based on how dangerous it would be if released. Confidential information only causes "damage to the national security," whereas secret and top secret information cause "serious damage" and "grave damage," respectively.

There is one additional category of classified information: Sensitive Compartmented Information (SCI). This category is entirely outside of the system described previously; instead of being established by executive order, it was established by the Director of National Intelligence (DNI). In addition, clearance is only given out for certain "compartments" of information, rather than the entire designation. More details can be found in the DNI Classification Guide.

For the purposes of this blog post, I'll only be focusing on the classified information established by executive order. Here are a few key features of this information:

• Only the President, Vice President, appointed agency heads, and specifically delegated government officials may classify, reclassify, or declassify information.
• Having security clearance for one classification automatically grants security clearance for all lower classifications.
• Higher security clearances require more stringent background checks.
• A security clearance does not guarantee access to information; the person requesting the information must have a valid reason for the request.

This is by no means a comprehensive rundown of the security clearance process in America; instead, these are all of parts of the system relevant to Jared Kushner. Why did Jared Kushner, whose only qualification seems to be being the president's son-in-law, have top-secret security clearance? What was his reason for even requesting such information?

Well, Kushner is a senior adviser to the President, and in this role he had been placed in charge of a laughably long and varied list of jobs:

• Achieving peace in the Middle East
• Dealing with the Opioid Crisis
• Enacting criminal justice reform
• Being a liaison to Mexico, China, and the Muslim community

Of course, Kushner isn't really doing any of these things - he's an investor, not a policy expert - but I suppose that his responsibilities were deemed far-reaching enough that he needed access to our nation's most guarded secrets.

So why did Kushner have his clearance downgraded? If any of you have read any of the news surrounding Kushner's downgrade, then you may have noticed that it's not just Kushner; dozens of White House aides are having their security clearances downgraded in a similar fashion. That's because none of these aides, Kushner included, actually had security clearances; instead, they all had interim security clearances.

There's nothing nefarious about interim security clearances. They're just security clearances granted before the sometimes lengthy background check process is complete. But in the case of the White House, not only were all of these aides operating on interim security clearances, but, according to the memo John Kelly wrote detailing the changes, they had all been operating on these interim security clearances since at least last June.

Last June?! That's more than a year and a half ago! Even the longest background checks don't last much more than a year and a half, and even if they did for one aide, the chances of them lasting that long for dozens are astronomically small. Why haven't these aides been granted proper security clearances yet?

Because some of them are Rob Porter.

Rob Porter was the White House Staff Secretary until resigning on February 7th over allegations of domestic violence. Here's an op-ed written by one of his victims for the Washington Post (warning: mildly graphic images).

Soon after his resignation, it was revealed that, like Jared Kushner and dozens of other aides, Porter had been using an interim security clearance for over a year. It was also revealed that the FBI informed the White House of the allegations against Porter, and that the administration did nothing in response. All of this is summarized rather nicely in this Washington Post article.

Based on these allegations alone, Rob Porter would not pass a background check. And Jared Kushner's suspicious business dealings cast doubt on the possibility that he would, either. It's unknown how many other aides have similar stories, but it's clear that they were not properly vetted for top secret security clearance.

So what can Jared Kushner do now? Well, not much, actually. He could try to appeal to his father-in-law; the President does have ultimate control over classified information. But Trump has indicated that he will not interfere with Kelly's changes. At this point, if Kushner wants top secret clearance back, the only thing he can do is wait it out and hope that he passes his background check.