President Trump has spent nearly a year attempting to fire Attorney General Jeff Sessions for the crime of following clear professional ethics by recusing himself from an investigation in which he is personally entangled. Trump has not yet followed through. One of the deep comic ironies of this presidency is that a man who built a national reputation as a managerial genius through his ability to memorably declare “You’re fired!” is unable to fire anybody. Instead, he attempts to demoralize his targets into resigning, through a combination of public and private abuse.
But the fact that something has come close to happening repeatedly without happening does not mean it will never happen. White House sources tell Axios that “today feels different than Trump’s usual rages. Sessions’ allies are deeply concerned and Trump is totally fed up with his AG.” Sessions had dinner last night with Deputy Attorney General Rod Rosenstein, another Trump target, further enraging the president. Trump’s notion that Sessions is a traitor is beginning to filter down to his loyalists. “@USAGSessions must be part of the Bush/Romney/McCain Republican Establishment,” wrote Jerry Falwell Jr. on Twitter. “He probably supported @realDonaldTrump early in campaign to hide who he really is. Or he could just be a coward.” The latest eruption may pass over like a summer storm, or Trump may finally carry through on his extraordinary intimations.
There are many good reasons why Sessions should not be attorney general, but Trump is motivated entirely by bad ones. He believes that the Justice Department should operate for his personal and political benefit, bringing charges against the opposing party while immunizing the president and his allies from prosecution. The attorney general should serve as “my Roy Cohn,” he has said, and has held up what he describes as corrupt cover-ups of illegal behavior by previous attorneys general as his model of proper behavior in the role.
Justice, of course, is supposed to be blind. (Hence the famous statue.) Trump has derided Sessions as “Mr. Magoo,” a coinage that very tellingly transforms Sessions’s insistence on upholding the main ethos of his department, blindness, into an insult. Trump’s periodically renewed determination to replace Sessions is of a piece with his firing of James Comey and as yet unconsummated desire to fire Robert Mueller and Rod Rosenstein. All these demands are the same demand, that Trump run federal law enforcement as a personal security force.
How would a Sessions firing accomplish this? It would presumably be extremely difficult for the president to implant a loyalist into the position. Republicans have only 51 senators. Any two could join with Democrats to block an unacceptable successor, and there are a number of potential Republican senators — John McCain, Jeff Flake, Susan Collins, and Bob Corker, among others — who would be inclined to do so if Trump nominates the kind of AG he obviously craves.
But Trump might be able to fire Sessions and appoint a temporary replacement. The Federal Vacancies Reform Act allows the president to install, for 210 days, any official who has been confirmed by the Senate for any position. One name that has been floated for such a maneuver is Environmental Protection Agency director Scott Pruitt, who might have the requisite combination of personal corruption and ideological fanaticism to carry out Trump’s bidding.
As Steve Vladeck explained last year, it is legally uncertain whether Trump could make this stick; the Federal Vacancies Reform Act may not apply to a scenario where the head of the agency has been fired. Instead, the Department of Justice might be required to follow its line of succession, and replace a fired Sessions with the next-in-line figure, which happens to be the hated Rosenstein. Trump could definitely do this if Sessions resigns, which might explain why he has gone to such lengths to humiliate Sessions into resigning rather than firing him openly. If Sessions quits, Trump can put any Cabinet-confirmed person into the role. If he has to fire Sessions, then he has a court case on his hands.
An appointment of a Pruitt, or some other Senate-confirmed Trump loyalist, would only last for 210 days. But that might be long enough for a sufficiently craven attorney general to fire independent staff at the Department of Justice and the FBI and quash the Mueller probe. Trump is not subtle about his desires, and what he wants is to replace Mr. Magoo with a justice that is not blind.