Constitutional lawyers and political historians are going to have a busy time with the Donald Trump administration because it is shattering conventional norms of behavior on an almost daily basis. This is not a trivial matter. The laws that supposedly govern the actions of elected and unelected government officials have quite wide interpretations and it is custom that often limits how they should be applied. With this administration, customs and norms are being cavalierly ignored.
Take for example, the weird triangle involving Trump, attorney general Jeff Sessions, and Robert Mueller, the special counsel who was appointed by deputy attorney general Rod Rosenstein to investigate “any links and/or coordination between Russian government and individuals associated with the campaign of President Donald Trump, and any matters that arose or may arise directly from the investigation.”
The clause that the investigation can cover “any matters that arose or may arise directly from the investigation” is clearly the one that seems to be irking Trump the most because of unconfirmed reports that Mueller is now looking into the financial dealings of Trump and his family with various shady characters around the world that could include organized crime figures. I have long felt that this was what Trump was really afraid of, more than the reports that the Russian government influenced the election. The laws governing the latter are so vague that they can be deflected by Trump with his usual bombast that it is a politically motivated attack. But the former, being criminal, carries with it serious dangers for him and his family. This is why we are even hearing reports on Trump and his lawyers exploring whether the president can pardon himself and his family members. Truly we are in the realm of open kleptocratic rule.
It is clear that Trump wants to have Mueller fired but he cannot do that by himself, though being the self-aggrandizing person he is, he may at some point simply grant himself the power to do so. It has to be done by the justice department and this is where things get murky and the clearest historical parallel is the famous Saturday Night Massacre on Saturday, October 20, 1973 when president Richard Nixon had special prosecutor (as they were called then) Archibald Cox fired. That did not end well for Nixon. Here is an old article that describes that sequence of events.
The high-level bloodletting began after President Richard Nixon ordered Attorney General Elliot Richardson to fire special prosecutor Archibald Cox for refusing to curb his investigation of controversial White House tapes. Richardson resigned rather than comply with the order, and Deputy Attorney General William Ruckelshaus tried to follow suit but was ousted before he could submit his resignation. Finally, at 8:25 p.m. on that fateful Saturday, newly appointed Acting Attorney General Robert Bork obliged the White House by discharging Cox and his entire staff.
Special counsels are usually appointed (and removed) by the attorney general but in this case Sessions had already recused himself from involvement with this case because of his contacts with Russian government officials that now seem to be more substantive than even when he recused himself. That is why it was his deputy Rosenstein who chose to make the Mueller appointment. Presumably, it is only Rosenstein who has the power to fire Mueller, unless Sessions decides to abandon his own recusal and fires Mueller, which in itself would be quite remarkable.
And this is why this situation is puzzling. As pretty much everyone knows, the last week has seen Trump publicly humiliating Sessions on an almost daily basis, based on his recusal decision, and the question is why he does not simply fire him. Some are speculating that he is trying to force Sessions to resign so that he can immediately appoint an acting AG who will fire Mueller. But surely if Trump called Sessions and directly asked for his resignation, Sessions would give it to him? And even if he didn’t and Trump had to actually fire him (which Trump in the past seemed to relish doing to people), why would he not be able to appoint an acting AG as if Sessions had resigned? Is it the case that in the case of a firing, the deputy AG automatically becomes acting AG and that means Rosenstein would have to fire the person he himself appointed or be fired himself?
Veteran politics and economics reporter David Cay Johnston tries to explain what the hell is going on and suggests that the coming August recess of Congress could be a key development in this drama.
Our Constitution provides Trump with a simple two-step process to rid himself of the meddlesome prosecutor he so fears.
First, when Congress starts its August recess, Attorney General Jeff Sessions resigns, which Trump has been signaling him to do. Trump could fire Sessions, but for reasons explained below would rather not. Sessions cannot fire Mueller because he recused himself from the Russia investigation, in which he is entangled.
Second, while Congress is in recess, Trump appoints a new attorney general. A Trump toady can immediately take the oath of office and a minute later fire Mueller.
The instant attorney general replacement is possible because our Senate cannot give its advise and consent when it is in recess.
Given Trump’s ease in finding unqualified people to fill high positions in our government, finding someone so craven that they would fire Mueller just so they can serve 18 months as our 85th Attorney General would be easy.
Trump could fire Sessions. But he has good reason to avoid that and instead pressure Sessions to resign.
Why not just fire Sessions? Because if Sessions quits Trump can say he had no choice but to quickly fill our nation’s top law enforcement job, especially because he has said he does not respect the Deputy Attorney General, Rod Rosenstein, who appointed Mueller.
Johnston says that Senate majority leader Mitch McConnell can prevent a recess appointment by Trump by not formally declaring a recess and instead having pro forma sessions during August. McConnell did this during the Obama presidency but he is a partisan hack who will do what Trump wants so that particular parliamentary maneuver is not likely to happen. Senate Democrats are vowing to block any recess appointments though it is not clear that they have the ability to do so.
Johnston seems to be suggesting that there is a substantive difference in the powers vested in an attorney general versus those in an acting attorney general and that is why the recess appointment (which is not required to be confirmed and the person can serve until the end of this Congress in 2018) plays a key role. But I don’t see it. Also Nixon acted when Congress was not in recess and though his AG Richardson resigned, his deputy AG Ruckelshaus was fired, so I still don’t understand why Trump does not fire Sessions at any time, especially since he does not know and does not care about parliamentary processes and sees the entire government as simply a business that he owns that should serve the interests of him and his family. Plus, his devoted fan base does not care much for due process either and will likely cheer on this show of thumbing his nose at the political establishment.
I must admit that I have a weakness for due process, to understand how things are done, and so am wondering what will happen during Congress’s August recess. Tomorrow, Friday July 28 is the last scheduled day of work before the scheduled recess begins. The reconvening takes place on Tuesday, September 5, leaving plenty of time for all manner of shenanigans to take place.