Washington is justifiably obsessed with the unprecedented battle between President Donald Trump and Attorney General Jeff Sessions, an early and vocal Trump supporter who now finds himself at the receiving end of the president’s verbal and Twitter abuse.
Depending on which anonymous report you believe, Trump is either a) getting ready to fire Sessions, b) deliberately humiliating Sessions to get him to quit, or c) throwing a temper tantrum with no actual plan of ousting the attorney general or persuading him to resign.
A Sessions firing or resignation would have enormous repercussions for the war on drugs and Trump’s ongoing efforts to crack down on media leaks and deport more unauthorized immigrants.
Don’t be fooled, though. The Sessions drama is a mere symptom of Trump’s true obsession: the metastasizing criminal investigation into whether his campaign colluded with Russia and whether he personally tried to obstruct justice by firing then-FBI Director James Comey.
The man who is most fully in Trump’s crosshairs, in other words, isn’t Jeff Sessions; it’s Robert Mueller, the Justice Department special counsel running the investigation into Trump, his family, and senior members of his campaign.
Sessions would, in a real sense, be collateral damage from Trump’s escalating war with Mueller. That’s because getting rid of Mueller would require getting rid of Sessions first.
The bad news is that Trump has the power to fire his attorney general whenever he wants to, for whatever reason he wants to. The good news is that replacing Sessions with someone more compliant — and more willing to shutter the Mueller probe — would be so difficult that Trump might ultimately choose not to.
Trump’s fight with Jeff Sessions isn’t actually about Jeff Sessions
The irony of Trump’s current fight with Sessions is that the president is furious that Sessions did the one thing both parties have praised him for doing: recusing himself from all aspects of the Justice Department’s Russia investigation. In an eye-opening interview last week with the New York Times, Trump said he wouldn’t have appointed Sessions if he’d known Sessions was going to recuse himself: “If he was going to recuse himself, he should have told me before he took the job and I would have picked somebody else.”
The president has insulted the attorney general almost every day since.
But that’s not all Trump has been fuming over. He and his inner circle are also increasingly obsessed with Mueller, who is now investigating events including Trump’s business dealings with Russians before launching his presidential campaign; a meeting Trump’s son Donald Trump Jr., son-in-law Jared Kushner, and campaign manager Paul Manafort had with Kremlin-connected lawyer Natalia Veselnitskaya in Trump Tower in 2016; and Trump’s decision to fire FBI Director Comey in May. In the same New York Times interview in which Trump rued appointing Sessions, he issued a veiled threat to Mueller: Asked if investigating Trump family finances would cross a red line, the president said, “I would say yes.”
Trump allies like Newt Gingrich have publicly argued for Mueller’s dismissal because of his alleged friendship with Comey and the fact that some of the lawyers on his team have donated money to Democrats; in an NPR interview Monday, Gingrich referred to Mueller’s team as “paid killers.”
The problem is that the Justice Department regulations creating Mueller’s position say that a “Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General.”
And that’s where things get tricky for the president. Sessions, the current attorney general, can’t fire Mueller because he already recused himself from the investigation Mueller now leads. The deputy attorney general, Rod Rosenstein, does have the power to fire Mueller — but he’s the one who hired Mueller to begin with, so it’s virtually impossible to imagine him obeying a White House order to oust Mueller.
That means actually firing Mueller would require the administration to sidestep Rosenstein. And the only way to sidestep Rosenstein would be to appoint a new attorney general, one who — unlike Sessions — wouldn’t be recused from making Russia-related decisions.
The trick would be finding a nominee that the White House would trust to do its bidding, and then figuring out how to get that person through a Senate furious over Trump’s treatment of Sessions and already signaling that it wouldn’t even begin confirmation hearings for his successor.
Just nominating a Sessions replacement won’t work
In theory, this should be simple. Trump’s party controls the Senate, and while Republicans in Congress have repeatedly expressed concern with Trump’s behavior over the Russia investigation — from firing Comey to threatening to fire Sessions — they haven’t yet reached a point of actually standing up to him about it. Trump could call their bluff, nominate a new attorney general, and wait to see if enough Republicans would actually be willing to cross him and sink the nomination.
But that would be a risky bet on the administration’s part. Sessions was a popular member of the Senate, and many of his fellow Republicans are already furious about how Trump has treated him. On Thursday, Sen. Lindsey Graham (R-SC) warned that going after Mueller could spell “the end of the Trump presidency” — and threatened, “If Jeff Sessions is fired, there will be holy hell to pay.”
Republican members of Congress have been willing to yield to Trump on most issues, but the combination of the severity of the Russia allegations and the president’s treatment of one of their own means this could actually be a hill they’re willing to die on. Trump’s bullying tweets haven’t really worked with health care, and there’s good reason to think they wouldn’t work now.
Senate Judiciary Chair Charles Grassley (R-IA) has already drawn a line in the sand, warning the president that his committee wouldn’t hold confirmation hearings for a new attorney general until next year:
Everybody in D.C. Shld b warned that the agenda for the judiciary Comm is set for rest of 2017. Judges first subcabinet 2nd / AG no way— ChuckGrassley (@ChuckGrassley) July 27, 2017
Since there would be no way to fire Mueller until a new attorney general was in place, that kind of timetable would mean Mueller would have at least half a year to continue his work unimpeded. That’s a long time for Trump to worry about what the former FBI chief might find.
The Senate is preemptively making it harder to replace Sessions
The president has already thought this far, at least. According to the Washington Post, he’s mulling the possibility of using the Senate’s August break to nominate a Sessions replacement — thus taking advantage of the constitutional provision that allows a “recess appointment” to step into the job without going through the Senate first.
The problem for Trump is that Democrats saw that gambit coming days ago, and can take steps that would make it impossible for Trump to actually do so. More specifically, Democrats could keep the Senate in “pro forma” session indefinitely by showing up every three days to keep the chamber technically active.
Even with a president of their own party in office, Senate Republicans decided in January to keep the pro forma tradition. And this week, they made it clear they’re not going to change their minds in order to allow Trump to do the very thing the pro forma session is supposed to prevent.
“If you’re thinking about making a recess appointment to replace the attorney general,” Sen. Ben Sasse (R-NE) said on the Senate floor Thursday, “forget about it.”
Trump could try to force the Senate to go into recess, but only by potentially sparking a literal constitutional crisis.
The Senate, technically, needs the consent of the House to adjourn for more than three days. The House has never refused to grant that consent — but in theory, it could.
That’s where things would get really dicey. The Constitution says that “in Case of Disagreement between” the chambers “with Respect to the Time of Adjournment,” the president “may adjourn them to such Time as he shall think proper.”
In other words, Trump would at least in theory have the power to force the Senate to go into recess — allowing him to nominate a Sessions replacement who would not need a confirmation vote.
This would be unprecedented in the 228 years that America’s been governed by the Constitution. It would create a constitutional crisis: As former Senate parliamentarian Alan Frumin told the New York Times, “If he can force them into adjournment, he can in essence terminate Congress.”
But Trump has been known to do things specifically because people told him he couldn’t. And his administration hasn’t shown much deference to governing norms. Trying to force the Senate into recess might cause chaos, but that doesn’t mean Trump wouldn’t try it.
Trump has one other option, but it would be either slow or difficult
Trump doesn’t really need a permanent attorney general to fire Mueller, though. He just needs some sort of attorney general — even an acting AG temporarily slotted in between Sessions and whoever he wants to fill the job in 2018. It doesn’t take that long to fire a special counsel, or to restrict the scope of his investigation.
And Trump has an option for appointing just such a temporary attorney general — thanks, ironically, to a 1998 law that was passed to give the president less leeway in naming acting government officials.
In 1997, President Clinton nominated Bill Lann Lee to lead the Civil Rights Division at the Department of Justice, but the Senate Judiciary Committee refused to approve his nomination. Instead of nominating someone else, though, Clinton allowed the position to remain formally empty — but named Lee to serve as acting civil rights head instead.
In response, the Senate passed the Vacancies Reform Act of 1998, which defined two pools of people who could be named to an “acting” position: relatively senior officials who had been working within the department in question for at least 90 days, or officials from anywhere in the federal government who had been appointed by the president and confirmed by the Senate.
The latter could lead to some mildly ridiculous scenarios (Acting Attorney Gen. Rick Perry! Acting Attorney Gen. Betsy DeVos! Acting Attorney Gen. Linda McMahon!). But the former actually gives Trump a lot of options.
Chris Geidner and Jeremy Singer-Vine, reporting for BuzzFeed, found that thousands of current DOJ lawyers meet the seniority requirements to get appointed acting AG under the Vacancies Reform Act. At least some of those are likely to be loyal to Trump.
Indeed, “anywhere from six to 17 of the lawyers who joined the Justice Department as Trump began his presidency” — the “beachhead team” designed to set the department on an appropriately Trumpian path — might now be eligible to serve as Sessions’s temporary replacement under the Vacancies Reform Act.
Trump only needs one.
But if the Vacancies Reform Act is the clearest answer for how Trump could name a replacement for Sessions, it raises a tricky question about how to get Sessions to vacate the position to begin with.
It’s simply not clear whether the president is allowed to use the Vacancies Reform Act to appoint an acting replacement for an official that he himself has just fired.
The text of the law only lists cases where the previous appointee “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”
Was “is fired” explicitly left out because Congress didn’t want the law to apply in those cases, or is it supposed to count under being “unable to perform the duties of the office”?
It depends what method you use to gauge Congress’s intent in passing the law.
Comparing the Vacancies Reform Act to the text of other federal laws — the Presidential Succession Act applies to cases of “death, resignation, removal from office, (or) inability or failure to qualify” for instance — might lead a judge to believe that the Vacancies Reform Act deliberately excluded replacements for fired officials. But looking at statements made by members of Congress when the bill was being debated might lead to the opposite conclusion. Author Sen. Fred Thompson (R-TN) said that the law on the books at the time “does not apply when the officer is fired,” but that the Vacancies Reform Act would fix it — to “make the law cover all situations” (except illness) “when the officer cannot perform his duties.”
If Sessions resigns, this problem doesn’t arise. This might be why, so far, Trump has declined to fire the attorney general he so clearly wishes would go away. But so far, Sessions has given every indication that if Trump wants him out, he’ll have to fire him: “If (Trump) wants to make a change,” Sessions told Tucker Carlson on Thursday night, “he can certainly do so.”
Trump may eventually lose patience and simply decide to do just that.
If Trump fires Sessions, though, there’s nothing preventing him from appointing an acting AG and simply claiming it’s allowed under the Vacancies Reform Act. He’d almost certainly get challenged in court. And it’s entirely possible that a federal judge would rule against the administration and moot the appointment of the acting AG.
But by the time that happens, it’s also entirely possible the acting AG will already have fired Mueller — or issued “guidance” that hamstrings Mueller’s investigation.
Maybe the Trump administration is queasy about that kind of brinksmanship and opportunism. Maybe they aren’t. After all, we’re talking about situations in which the president fires an attorney general so that he can get a special counsel fired. Thinking about the legally proper way to do things seems almost quaint.