Although for my money the big news of the week has been the resurrection of efforts by Republicans in the U.S. Senate to repeal (and replace?) Obamacare, another story—President Trump’s continued, withering, and ultra-public criticism of Attorney General (AG) Jeff Sessions—grabbed plenty of headlines too. In the space below, I explain why the conventional wisdom about this episode—that the president wants to remove Sessions so that the president can then go after Special Counsel Robert Mueller and Mueller’s Russia-related investigation—misses the legal mark.
I should say at the outset that I make no prediction as to whether Attorney General Sessions will resign or be fired by the president anytime soon. The President himself said, cryptically, that “time will tell.” Many other analysts expect Sessions’s termination before long, and they see such a move as the first step in a sequence leading to the ouster of Mr. Mueller. As my former Yale Law School teacher Paul Kahn described what I see as the consensus pundit take on the matter a few days ago in an LA Times op-ed, “[t]o fire Mueller, Trump probably first would have to fire Rod Rosenstein, the deputy attorney general. And to do that, he would have to finish what he’s already loudly hinting at: ridding himself of Atty. Gen. Jeff Sessions.”
I don’t see why.
The Unitary Executive Theory
Let’s start with the Department of Justice regulation under which Mr. Mueller was appointed and that regulates his office as Special Counsel, because this regulation appears to lie at the core of the common wisdom that Sessions must be the first domino to fall in the president’s contest with Mr. Mueller. In relevant part, it reads:
[T]he Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. . . .
The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause. . . .
The thinking among analysts appears to be that because, under the regulation, only the AG can remove the Special Counsel, and then only for “cause,” and because Sessions is staying out of the matter, he must first be replaced by someone who will do the president’s bidding, find “cause,” and fire Mr. Mueller.
There are a number of problems I see with this line of reasoning. For starters, it is not remotely clear to me that the regulation is best read, or can constitutionally be read, as limiting the president’s power to directly fire Mr. Mueller, for any reason whatsoever. Instead, perhaps the best reading of the regulation consistent with the Constitution is that the regulation identifies the AG as the only person within the Department of Justice (DOJ) who can (for limited reasons) remove or discipline the Special Counsel but that the regulation does not (and perhaps cannot) apply to the president.
I say this because recent Supreme Court decisions (such as Edmond v. United States and Free Enterprise Fund v. Public Company Accounting Oversight Board) lean in the direction of the so-called “unitary executive” theory, under which all actors who exercise core executive powers within the federal executive branch must be controllable by the president himself. To be sure, such recent cases send signals different from those coming from the Morrison v. Olson, the case a generation ago which upheld, against a separation-of-powers challenge, the so-called Independent Counsel position created by Congress in the Ethics in Government Act of 1978. Morrison may not command five votes at the Court today. And in any event, telling the president he must obey a statute passed by Congress (which the Court did in Morrison) is different from telling him he must obey a regulation promulgated by his own DOJ (which is the situation presented today).
There is, I should acknowledge, Supreme Court precedent that supports requiring a president who is suspected of wrongdoing to obey DOJ regulations that are on the books. In the famous Nixon Tapes case, United States v. Nixon, the Court said of the DOJ regulation that authorized Special Counsel Leon Jaworski to seek subpoenas and to contest invocation of executive privilege by others in the executive branch, “[s]o long as the regulation is extant it has the force of law.” Perhaps this language would apply to the regulation under which Mueller operates.
The President Can Rescind DOJ Regulations
But that merely brings me to my second point: if the regulation under which Mr. Mueller operates is binding on the president, the president can simply rescind it. The Nixon Court implied that had Richard Nixon done just that with the regulation empowering Mr. Jaworski, the case would have come out the other way, but that the Court wanted to make the president take such an action publicly and accept any ire from Congress (the same way that pardons—a topic I don’t address today—are public and can provoke political backlash that could lead to impeachment.)
Rescinding the Mueller regulation (which I think President Trump surely has the power to do—how could it be that his own Department of Justice can maintain regulations that he doesn’t approve of and that haven’t been adopted by Congress?) is probably less news-grabbing than firing Sessions would be, so I don’t know why that wouldn’t be a preferable move for President Trump.
AG Sessions’s Recusal and Its (Ir)relevance to the President’s Authority
All of this brings me to my third observation: even assuming the Mueller regulation binds the president and continues in effect, AG Sessions’s remaining in office is beside the point. Mr. Sessions has recused himself from the Russian investigation, so—under the very terms of the regulation—he is not the “Attorney General” for purposes of overseeing, disciplining or firing Mr. Mueller. If the president wanted to get rid of Mr. Mueller today (even assuming the regulation remains in place), the president could instruct Deputy Attorney General Rod Rosenstein (who is currently the AG for purposes of the Russia investigation) to remove Mr. Mueller because the president believes Mr. Mueller has engaged in misconduct by improperly expanding the scope of the investigation or by ignoring conflicts of interest. Notice the regulation doesn’t fully define misconduct or say who is to determine whether misconduct has occurred, so long as the president’s definition and findings are plausible, it is hard, once again, to see how the views of people in the DOJ could override his.
And if Mr. Rosenstein resigns (or is removed) because he doesn’t want to carry out the president’s directive (which is possible), then the next person in line for that role who by statute has to be a person already confirmed by the Senate and who right now would likely be Rachel Brand, would be the one Trump directs to remove Mr. Mueller. If she were to resign as well, yet another Senate confirmee would move into the Acting AG role for purposes of the Russia investigation. In any event, whether Mr. Sessions remains Attorney General is irrelevant to how things would go under the regulation, since the regulation’s reference to the “Attorney General” must mean the Acting AG for purposes of the Russian investigation, insofar as Mr. Sessions has recused himself. (And if that is not what the regulation means, then no one at DOJ would have authority to remove or discipline Mr. Mueller, even for clear cause, which would make no sense.)
To be sure, if the president left the regulation intact and felt bound by it and proceeded to “fire his way down” to Mr. Mueller, the president might look bad politically. But adding an additional termination by firing Mr. Sessions first and then firing his way down the list would look worse still.
Why, then, would the president even think about removing Mr. Sessions? I’m not really sure. The downside is clear. Mr. Sessions is popular among conservatives and in the Senate more generally. He is pursuing a hard-line stance on immigration and drugs, which seems to be what President Trump wants and (for the most part) campaigned on. It is difficult to imagine the president could get anyone else outside of DOJ to take the AG nomination job if Sessions were removed, and Senate confirmation of any new nominee would surely be a challenge. (And it appears the Senate will not take a formal recess, so there is no opportunity for the President to appoint a new AG without going through Senate confirmation.)
The upside (to the president) of having Sessions gone is harder to see. I suppose Sessions’s public recusal was itself a kind of validation of the legitimacy of the investigation into the ties between President Trump and his team, on the one hand, and adverse Russian interests, on the other. So removing Mr. Sessions eliminates a reminder of the investigation that obviously frustrates the president on a daily basis. Second, removing Sessions for having disappointed the president (by recusing himself or failing to tell the president he was going to) sends an in terrorem message to any other members of the Administration who value their jobs and who are behaving too independently. And third, perhaps removing Sessions would serve as a trial balloon for the president; if Republicans in Congress (many of whom have friendships with Sessions) and conservatives throughout the country were to stick with the president after he removed Mr. Sessions, that would confirm for the president how solid his congressional support might be if and when he moved against Mr. Mueller.
Beyond that, I can say only that I’m not sure the White House has fully thought things through here.