Better in their words…

Mr. Bork. A shame that the USA did not benefit from your presence on the Supreme Court.
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WSJ 1/2/2018

Robert Bork has been dead five years. But at a moment when the air is thick with reckless talk about a “constitutional crisis” if President Trump were to fire Special Counsel Robert Mueller, Bork’s explanation for his firing of Special Prosecutor Archibald Cox in 1973 offers balance the nation could use right about now.

Let us begin by stipulating that when asked by reporters whether he was going to give Mr. Mueller the heave-ho, Mr. Trump answered with no ambiguity: “No, I’m not.” In a follow-up interview with the New York Times, the president said of Mr. Mueller, “I think he’s going to be fair.”

As clear as these statements are, they have done nothing to stanch the flow of warnings from people directing Mr. Trump not to do what he says he has no intention of doing. From Bernie Sanders and Mark Warner in the Senate to MSNBC and MoveOn.org, the chorus goes up: Mr. President, do not fire Mr. Mueller or you will create a constitutional crisis.

There are two broad problems with these admonitions. The first is political. Notwithstanding the drama and foreboding with which these warnings are delivered, Mr. Trump’s most embittered foes can’t help leaving the impression that sacking Mr. Mueller is precisely what they most fervently pray he’ll do, bringing them closer to the impeachment they hope for.

The bigger problem is definitional. A president exercising his constitutional authority as head of the executive branch to fire someone in that branch may well create a political crisis. But it is in no way a constitutional crisis.

Here Bork’s ruminations about his experience during Watergate are illuminating. Not unlike Mr. Mueller, whose investigation has come into question because of the way he’s stacked his team with Hillary Clinton partisans, Cox’s close relationship with the Kennedy family persuaded Nixon (wrongly, Bork wrote) that the prosecution was in fact a persecution led by his political enemies.

Ultimately this led to the so-called Saturday Night Massacre. Cox had demanded the White House tapes when he’d learned of their existence, and, when he refused the compromise the president offered, Nixon directed Elliot Richardson to fire Cox. The attorney general resigned rather than carry out the order, as did his deputy, William Ruckelshaus. Solicitor General Bork then became acting attorney general. In that capacity he fired Cox but kept the investigation going, with the same team of investigators.

In his book “Saving Justice,” published posthumously in 2013, Bork recounts an exchange with a lawyer who told him he too should have refused to fire Cox because it would have brought Nixon down sooner. Bork responded as follows:

“If a constitutionally inferior officer of the executive branch could topple the president of the United States, then the country would begin to resemble a banana republic. There are constitutionally prescribed methods for ousting an unwanted president: impeachment by the House and conviction on the article of impeachment by the Senate. Anything else is civil disobedience.”

In a 1993 article for Commentary, Bork acknowledged that any competent prosecutor would have sought the Nixon tapes as Cox did. But he also argued that once Cox rejected the president’s order that he seek no further tapes, “Nixon now had to fire him” because “no President can afford to be faced down in public by a subordinate member of the executive branch.”

Just as interesting is Bork’s insistence that ordinary Justice Department prosecutors were fully capable of investigating the executive branch: “Though there was no need for a special prosecutor to deal with Watergate,” he wrote, “it was politically inevitable that one would be named.”

The situation today with Mr. Trump is similar. As president, he could order Mr. Mueller fired, as Nixon did with Cox. And it would not be a “constitutional crisis.”

This is not to say that it wouldn’t create a political crisis. In his book Bork explained that though he would have preferred to resign after firing Cox, he remained to prevent a wave of destabilizing resignations that threatened to leave Justice nonfunctional.

Firing Mr. Mueller would carry similar risks. For one thing, it would convey to a large segment of the American people that Mr. Trump has something to hide. Moreover, the Saturday Night Massacre led to the abomination of the independent counsel law, and sacking Mr. Mueller would encourage similar, terrible legislative “fixes.” The two offered last year by Sens. Lindsey Graham and Thom Tillis would further insulate a special counsel from accountability by introducing the judiciary into an executive branch decision.

Finally, there’s sheer political calculation. At a time when the partisanship and unprofessionalism of the special counsel’s team is becoming as much a story as the Russian collusion they are investigating, for Mr. Trump to change the channel now would be a particularly brainless move.

In 1973, amid the tumult of Watergate, America benefited from the courage and sober judgment of Robert Bork. We could use it today.

Write to mcgurn@wsj.com.