The one ray of light in the horror that has been Jeff Sessions’s tenure as Attorney General is that Sessions recused himself from the Russia investigation after the first of a series of revelations about his likely perjury on this very issue. By recusing himself, Sessions left authority over the investigation in the hands of career officials, a prospect that is naturally intolerable to President Trump. Trump is tweeting his rage at Sessions, and a wide array of news reports unsurprisingly indicate that he is plotting the AG’s ouster. Anthony Scaramucci, a rising power in the administration who has taken on a quasi–chief of staff role, tells right-wing broadcaster Hugh Hewitt that Trump wants Sessions gone, confirming the obvious.
There is a clear barrier to Trump’s goal of replacing Sessions with an attorney general who would be willing to interfere with the investigation: Any replacement would require confirmation from a Senate where Republicans hold only 52 seats. But there is a way around this barrier, too. As University of Texas law professor Steve Vladeck points out, Trump could make a recess appointment.
His appointee would then serve without confirmation through the Senate’s current term, which ends late next year. Trump could pick the most pliant candidate he desires for this job — Melania Trump, Rinat Akhmetshin, Sean Hannity, you name it. More likely, he would simply find a pliant Republican apparatchik seeking to elevate his stature. And that candidate could fire Robert Mueller or otherwise abuse the department’s powers in a manner Trump obviously craves.
There has been no reporting yet that Trump is even considering such a maneuver. But it is worth noting just how continuously transparent Trump’s instincts are. The entire concept of the rule of law, where officials in the government follow codified procedures to protect the public interest rather than the personal and political interests of the president, is utterly foreign to him. In recent hours on Twitter, he again implicitly threatened hostile tax policy against the owner of the Washington Post because of his displeasure with its reporting:
He upbraided Sessions for failing to punish his defeated opponent for an offense that has already been investigated:
And he demanded the attorney general investigate alleged Ukrainian interference to help Clinton:
Presumably, the end of this tweet — “So where is the investigation A.G. @seanhannity” — is simply a way of tagging one of Trump’s state media mouthpieces, rather than previewing a forthcoming appointment.
The Department of Justice is supposed to carry out its law-enforcement work without regard to partisanship. The president is not supposed to direct investigations by the attorney general. These norms, quite vital to the republic, are threatened on a now-daily basis by the bullying president.
Update: Senate Democrats, responding to this very scenario, declare that they will keep the Senate in a pro forma session to prevent a recess that Trump could use to appoint a successor for Sessions without confirmation. Meanwhile, House Speaker Paul Ryan, asked if he is concerned that Trump might fire Sessions in order to quash the Russia investigation, gives the president a full green light:
Q: The president appears to be laying the groundwork to fire his attorney general then make a recess appointment of someone who could fire the special counsel. Does that concern you? Is there anything you could do to stop it?
Ryan: Look, the president gets to decide what his personnel is, you all know that. He’s the executive branch, we’re the legislative branch, he determines who gets hired and fired in the executive branch, that’s his prerogative. If he has concerns or questions or problems with the attorney general I’m sure he’ll bring it up with him himself.
Q: But would that be obstruction of justice if he was firing him because he recused himself from the Russia investigation?
Ryan: It’s up to the president to decide what his personal decision is and any possible fallout that comes from that. If he has concerns with anyone in the administration, their conduct on the job, I’m sure he’s going to talk to them directly.