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What are the ramifications if a member of any Executive Branch fires a Special Counsel appointed to investigate him in a criminal corruption case?

The ramifications of an Executive Branch member firing the Special Counsel member appointed to investigate them include exposing conflicts of interest and undermining the rule of law.

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In the context of the United States federal government, the ramifications for firing a special counsel by an officer of the executive branch are of a political nature only, as federal statutory and administrative law allows the United States Attorney-General—a member of the executive branch—broad discretion in the dismissal of a special counsel. Ergo, the discharge of a special counsel outside of the conditions set-forth in law would have no ramifications of a non-political nature, as no such discharge can occur.

We have only one example of the dismissal of a special counsel from which to draw conclusions of what the political ramifications would be, and that is the 1973 firing of Archibald Cox by Acting Attorney-General Robert Bork. The firing of Cox accelerated a series of events already set in motion by the Watergate scandal, which culminated in the resignation of Richard Nixon as President of the United States.

Harry Rimm, a former federal prosecutor, has theorized that the firing of a special counsel might result in impeachment proceedings against the president of the day.

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This is a timely question, although the practice of appointing a special counsel to investigate allegations against government officials (particularly the executive branch) is not new. In this process, the Attorney General of the United States authorizes the special counsel to investigate a given set of allegations, as well as federal crimes committed with the intent to interfere with the investigation (this includes perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses). The special counsel also has authority to investigate any new allegations that arise and are directly related to the existing investigation. Under regulations in 28 C.F.R. 600.1, there is a three-step analysis in the decision to appoint a special counsel:

1. The attorney general must determine is a criminal investigation of a person or matter is warranted.

2. If a criminal investigation is warranted, the attorney general must determine if a conflict of interest would arise if the U.S. Attorney's Office or Department of Justice litigated the matter.

3. If it would be in public interest to appoint a special counsel.

Following appointment, the special counsel has the authority to investigate with the full power and independence of any U.S. attorney. However, they must consult with the attorney general should new allegations rise directly related to the matter under investigation.

Under section 600.7, removal of the special counsel requires "direct action" from only the attorney general and "only for good cause", i.e. “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of [DOJ] policies". Therefore, a member of the executive branch (such as the President) does not have the power to directly remove an acting special counsel. The only way for a president to remove an appointed special counsel would be to instruct the attorney general to fire the counsel. Under law, the attorney general could only do so under strict guidelines, and would have to show prove misconduct or incapacity in respect to the special counsel. If the attorney general refused to do this, the President could theoretically replace the attorney general with someone who could carry out the orders to fire the special counsel. However, the political ramifications of this are disastrous; as seen in the 1973 "Saturday Night Massacre" of the Watergate Scandal during which President Nixon replaced the Attorney General Elliot Richardson after he refused to fire special counsel Archibald Cox. Richardson was replaced with Deputy Attorney General William Ruckelshaus, which lead to immense political fallout. Therefore, it is absolutely unlikely that a President have a special counsel removed without significant political, and perhaps criminal, repercussions.

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To understand the ramifications of this action, we must first understand what a "special" or "independent" prosecutor or counsel is. Basically, the position is created when a potentially criminal issue exists for which the attorney general's office might have a conflict of interest. So when a special prosecutor is fired by the executive they are appointed to investigate, it essentially illustrates this conflict of interest. A special counsel will not be able to do their job if they have to work under the fear of being fired by the very person they are investigating.

This issue, in fact, came to the forefront at the height of the "constitutional crisis" posed by the Watergate scandal in October of 1973. On October 20, President Richard Nixon, whose involvement in the scandal was under investigation, ordered Attorney General Elliot Richardson to fire Archibald Cox, the special counsel appointed to lead the investigation. Cox Richardson resigned rather than doing so, as did his deputy William Ruckelshaus. Robert Bork, the Solicitor General, became acting Attorney General and agreed to fire Cox. This action, described by the media as the "Saturday Night Massacre," was seen at the time as a constitutional crisis that severely limited the extent to which the President was subject to the rule of law. In short, the President was attempting to use his powers as Chief Executive to cover up his own criminal behavior. This case clearly illustrates the potential constitutional ramifications of such a decision.

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