Dispatch March 15, 2018

What Replacing Sessions Could Mean For the Mueller Investigation

In light of reports that the Special Counsel has recently subpoenaed President Trump’s business records, a move that Trump has previously described as crossing a “red line” (despite having no authority to draw such lines), recent rumors of Attorney General Sessions’ possible firing take on new urgency. These rumors include speculation that Trump may be planning to replace Sessions with EPA head Scott Pruitt.  

In addition to the numerous other questions this would raise, the move would also be an unlawful attempt to impede the Special Counsel’s Russia investigation.

Firing Sessions could only be about the Russian investigation.

  • Sessions has relentlessly implemented the Trump agenda at the DOJ: “tough on crime” policies, a hardline on immigration, and dismantling the Obama administration’s legacy.
  • The only issue where there has been major disagreement has been on Sessions’ decision to recuse himself from the Russia investigation.

Trump may be trying to use the Vacancies Reform Act (VRA) to temporarily replace Sessions and obstruct justice by firing Mueller.

  • Under the Vacancies Reform Act (VRA), President Trump can appoint anyone who has been Senate-confirmed to fill the position for up to 210 days (or potentially longer, if the next appointee’s nomination is pending).
  • However, that person cannot later be appointed to the same position, and it’s unclear if a Vacancies Act appointee is eligible to fill a position for someone who has been fired rather than resigned or died in office.
  • The DOJ line of succession is outlined by a different law and would result in the sitting Deputy Attorney General assuming the role of the Acting Attorney General. There is no obvious reason to deviate from that policy, except to jump over the current DAG (Rod Rosenstein, who oversees the Special Counsel) to put someone else in an oversight role over the Russian investigation.
  • The appeal of the VRA to Trump would be to move a loyalist (like Pruitt) who, in theory, would not be recused from the Russia investigation and could rescind the order appointing the Special Counsel or otherwise impede the investigation, into the Acting Attorney General role.
  • Any move like this to scuttle the Special Counsel investigation could constitute obstruction of justice.

But any Acting Attorney General appointed by Trump in this manner would clearly suffer from the kind of conflict that would require recusal from the Russia investigation.

  • Trump himself explicitly stated that he would not have appointed Sessions if he had known that Sessions would recuse himself, saying “He should not have recused himself from the Russia investigation … if he was going to recuse himself, he should have told me prior to taking office, and I would have quite simply picked somebody else.”
  • After McGahn was unable to prevent Sessions from recusing himself, Trump reportedly “erupted in anger in front of numerous White House officials, saying he needed his attorney general to protect him.”
  • Given Trump’s statements about his view of the role of Attorney General and the VRA’s requirement that the individual already be someone appointed to a Senate-confirmed position, Pruitt or any other conceivable candidate would have a conflict based on his or her political relationship with “any person … he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”

Anyone Trump appoints in this manner must recuse themselves from any role in the Russia investigation.