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Even Republicans Have Used the ‘I’ Word, but Would Firing Mueller Get Trump Impeached?

(PhatzNewsRoom / NYT)   —   WASHINGTON — Even for Senator Jeff Flake, an Arizona Republican who has emerged as one of his party’s most fervent critics of President Trump, the warning he issued recently that firing the special counsel could lead to the president’s impeachment was extraordinary.

“From what I can see, that’s the only remedy,” Mr. Flake said.

But it is anything but clear that the long-speculated dismissal of the special counsel, Robert S. Mueller III, would have the tectonic consequences that Mr. Flake and other Republicans and Democrats have spoken of — or any consequences at all. In truth, the fallout on Capitol Hill, where lawmakers alone may decide what happens, would probably be far messier than the swift justice that Mr. Trump’s critics imagine.

For months now, Democratic leaders and their aides have gamed out crisis situations during planning meetings, talking through the implications for the potential firings of not just Mr. Mueller but also the attorney general, Jeff Sessions, and his deputy, Rod J. Rosenstein. But as the minority, they have little recourse without Republican support. Whether they would get it could depend in large part on what Mr. Trump and Mr. Mueller ultimately have to say.

And any real repercussions for Mr. Trump may have to wait for the midterm elections, when voters decide whether to hand one chamber of Congress — or both — to the president’s opposition.

“I hope that my colleagues would stand up and say, ‘This is the Saturday Night Massacre all over again; we can’t go there,’” Mr. Flake said in an interview, referring to the night Richard M. Nixon fired top Justice Department officials and the special prosecutor investigating him. “But I am more and more concerned all the time.”

For now, the chances of the president’s impeachment remain remote, even though Democrats may be outspoken on the subject. “I will sleep with my cellphone next to my ear, and if the word comes down that Donald Trump is taking out Sessions, taking out Mueller, taking other actions to undermine the rule of law and obstruct justice, I will be on the first plane to Washington,” said Representative Luis V. Gutiérrez, Democrat of Illinois and a member of the House Judiciary Committee, where impeachment proceedings would begin.

“It would leave this committee no choice to go ahead with impeachment hearings,” he added.

But Speaker Paul D. Ryan and Representative Robert W. Goodlatte of Virginia, the Judiciary Committee’s chairman, have given no indication of how they would proceed, and aides say privately that Republican leaders view the possibility of Mr. Mueller’s firing as too improbable to warrant hypothetical discussions.

Short of that, there are other options. Congress could pass a law reinstating an independent investigator in the executive or legislative branch, though Mr. Trump would have to sign it. Lawmakers could demand that Mr. Mueller’s evidence be turned over to Congress. They could press to censure the president. Or they could make his fate a political issue and let the voters decide in November.

Republicans and Democrats do agree on one thing: Should the special counsel be ousted, the business of Congress — hearings, nominations and legislation — would screech to a stop, replaced by a painful, consequential debate over the most serious constitutional challenge in a generation.

“The rule of law is very dear to many of us,” said Senator Lindsey Graham, Republican of South Carolina. “I don’t think you have to be too creative to understand how damaging that would be.”

Mr. Trump has made no secret of his contempt for Mr. Mueller’s investigation into potential ties between his campaign and Russian interference in the 2016 presidential election, and into possible obstruction of justice by the president himself. He ordered the firing of Mr. Mueller over the summer before backing down.

But more recently the president has shifted to a more aggressive, direct attack on the special counsel and the legitimacy of his inquiry.

Under current law, Mr. Trump cannot directly fire the special counsel. Even if he ordered the Justice Department official overseeing the case — right now, the deputy attorney general — to dismiss Mr. Mueller, he would have to cite good cause. But Mr. Trump has proved willing to fire or push out other top F.B.I. officialstied to the investigation, as well as his secretary of state and his national security adviser, and could choose to remove those who objected to the order.

An unleashed president has members of both parties nervous.

If Mr. Mueller were fired and the investigation disbanded, of primary importance would be preserving the evidence gathered by the special counsel’s investigation, aides in both parties say. Congress could leverage its control of the Justice Department’s nominees and purse strings to ensure its safekeeping while other matters were sorted out. Relevant committees could then call for Mr. Mueller to testify, as they weighed a path forward legislatively.

But Mr. Mueller would have to be willing to share his knowledge. If he were inclined to disclose details of his investigation to Congress, many of which are not protected by grand jury secrecy, it would be very difficult, if not impossible, for Mr. Trump to stop him, legal experts said.

“If Mueller or members of his team are subpoenaed by Congress, and they’re willing to tell their story, then I think there’s a strong likelihood that the story gets told,” said Ross H. Garber, an expert in impeachment law who has represented several politicians in high-profile investigations.

The spectacle of a fired special counsel — and former F.B.I. director — publicly divulging the results of his investigation would raise parallels to the Watergate hearings and raise pressure on Republicans to break rank. On top of that, a potential subpoena fight over Mr. Mueller’s records would add a nasty sideshow that would sap Mr. Trump’s political agenda.

“We have to expect that all the information that Mueller and his team have discovered will ultimately be made public one way or another,” Mr. Garber said.

Democrats say they also fear a less dramatic outcome: In lieu of demanding the firing of Mr. Mueller, the president could replace Mr. Sessions and Mr. Rosenstein as part of what has become regular turnover in a tumultuous administration. A new attorney general could then declare that further investigation was unnecessary and dismiss Mr. Mueller on his or her own. The end result would be the same, but it could give the White House the argument that the Justice Department made the decision independently of the president, making it harder to build support for Congress to act.

Without support for impeachment, Democrats say the most realistic path toward Republican cooperation would be an effort to get Mr. Mueller, or another investigator, reinstated. Options under discussion include hiring Mr. Mueller as a special congressional investigator, passing a new independent counsel law that would restore him or another trusted law enforcement figure as an executive branch employee with explicit protections from Mr. Trump, or enacting legislation that would allow Mr. Mueller to appeal his firing to a panel of judges.

None of those options are a sure thing.

“It would be a mess,” said Senator Chris Coons, a moderate Democrat from Delaware who has all but pleaded with colleagues to support a measure he has drafted with Senator Thom Tillis, Republican of North Carolina, giving Mr. Mueller the right to appeal his dismissal.

“My concern is that they would want to do the least effective thing, which is send the president a resolution of reprimand or censure, urge him to reconsider and then just sort of go sideways for a week or two,” Mr. Coons added.

Even if Congress passed legislation reinstating a special counsel in some fashion, it is unclear whether such a law would have teeth, and many legal experts said the legislation could almost certainly prompt a legal challenge from the White House.

“The more likely outcome is that the executive branch would ignore Congress,” said Mr. Garber, the lawyer. And hiring Mr. Mueller as a congressional investigator would not be the same as maintaining him as a special counsel, with the F.B.I. and a grand jury at his disposal.

“If he has no resources, and no ability to get resources, then it doesn’t seem like he can do very much,” Mr. Garber said.

The voters, however, would eventually have a say. Democrats have signaled that they would take a much more aggressive posture if they take the majority. Liberals say they already feel that their political base favors removing the president.

Representative Jerrold Nadler of New York, the top Democrat on the Judiciary Committee who stands to inherit the chairmanship under Democratic control, has resisted telegraphing what steps he would take if his party were to retake the House. But he has made clear he would not stand by idly.

“Should a red line be crossed, and firing the special counsel or throttling his investigation are red lines, then there would be a total sea change in the political landscape of the country,” he said at a recent news conference. “And at that point, all options would be on the table.”

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