President Donald Trump’s increasing attacks on Attorney General Jeff Sessions has led some to speculate that the president could oust Sessions or get him to resign and then seek to make a recess appointment to fill the void while the Senate is on break, bypassing a traditional confirmation.
In a Washington Post story on the growing divide between Trump and his attorney general on Monday, a University of Texas law professor told the publication that a recess appointment was one option available to Trump should he seek to oust Sessions.
Normally, a potential Sessions replacement would have to face Senate confirmation, a process that would be extremely difficult for any potential nominee to pass even as the Senate is under Republican control. Based on Trump’s public comments, it would look as though Trump replaced Sessions solely for the purpose of selecting an attorney general who would be willing to fire special counsel Robert Mueller, who is overseeing the FBI investigation into possible collusion between members of the Trump campaign and Russians. Sessions has recused himself from all campaign-related investigations, much to Trump’s chagrin.
If Trump were to replace Sessions while the Senate is in recess next month, they could serve until the end of the next Senate session in early 2019 without being confirmed.
CNN reported Tuesday that senators are “planning to continue procedural moves” that would prevent the Senate from “formally adjourning for recess,” seeking to prevent Trump from making any sort of recess appointment. As Democratic and Republican aides told CNN, Democrats plan to “force the Senate to hold pro forma sessions — a practice both parties have carried out to block recess appointments from presidents of the opposite party.”
A pro forma session would mean the Senate did not officially go on recess.
“While Republicans control the Senate now, the only way they can formally adjourn — which would set up a period when recess appointments are allowable — is to pass an adjournment resolution,” CNN noted. “The problem is that Democrats can filibuster that resolution, which they would do to prevent Trump from making recess appointments.”
Democratic Rep. Don Beyer of Virginia noted to Business Insider that the Supreme Court’s decision in NLRB v. Noel Canning gave the Senate the “ability to prevent any recess appointments simply by holding pro forma sessions during August.”
“They absolutely must take this course to protect Congress’ power to conduct oversight of the executive branch,” he said.
Concern over such an attempt to circumvent the Senate grew as Trump continued lambasting Sessions throughout Tuesday. The president started his day by blasting Sessions on Twitter for having taken “a VERY weak position on Hillary Clinton crimes (where are Emails & DNC server) & Intel leakers!” The president also asked “where is the investigation A.G.” in a tweet in which he discussed “Ukrainian efforts to sabotage Trump campaign.”
In an interview with The Wall Street Journal later in the day, Trump said he was “very disappointed in Jeff Sessions,” a statement he would repeat in a Rose Garden press conference alongside Lebanese Prime Minister Saad Hariri just hours later. Trump told the Journal that Sessions’ endorsement of his candidacy early on was “not like a great loyal thing.”
He did not, however, say whether he was planning to oust Sessions.
A Democratic aide to a member of the Senate Judiciary Committee told Business Insider in an email that a Sessions firing would turn Washington, DC, into “a circus.”
“Is it a precursor to firing Mueller?” the aide asked. “If so, what happens then? Is it because he wants the AG to go after his former political opponent, Hillary Clinton? Is it because of the Russia investigation? Who comes next? And what’s the point in having an AG if they’re only there to do exactly what the President wants them to do?”
“The scary thing is that it seems almost inevitable,” the aide continued. “If he does it in August, you can just see Republicans giving BS answers to local TV cameras like ‘I’m here to talk about tax reform, not DC drama,’ and then the president just gets away with it.”
Fellow Democrats were adamant about the storm that would ensue if Trump decided to oust Sessions over his Russia recusal.
“President Trump has made it crystal clear that he fired FBI Director Comey because he was investigating Russia and that he is infuriated that Attorney General Sessions didn’t shut down the investigation personally,” Democratic Rep. Elijah Cummings of Maryland told Business Insider in a statement. “The basic question is why President Trump now wants Sessions out.”
Cummings, who is the ranking member of the House Committee on Oversight and Government Reform, said it would be both “completely inappropriate” and “further evidence of the president’s obstruction of justice” if Trump tried to install a new attorney general in hopes of ending the Mueller investigation.
“Given all that the President has said and done to date, the Senate must not allow anyone to assume the position of attorney general without its advice and consent, and it should take the appropriate steps procedurally to stay in session to block such a move,” Cummings said.
Firing Sessions now would make clear that Trump “will do nearly anything to hide the truth about his campaign’s involvement with Russia,” Beyer, the Virginia congressman, said.
“I bear Sessions no affection; he has already been one of the most harmful attorneys general in history and I have called for his resignation,” Beyer said. “But we cannot allow the President to continue to undermine the independent investigation into his Russia dealings.”
During a Senate floor speech Tuesday morning, Senate Minority Leader Chuck Schumer suggested that a recess appointment to replace Sessions would create “a constitutional crisis.”
“It’s clear that President Trump is trying to bully his own Attorney General out of office,” Schumer said. “How can anyone draw a different conclusion? If President Trump has serious criticisms of his attorney general, why not go talk to him in person? Why air his grievances so publicly? He wants him out.”
Schumer said that Democrats “would never go along with a recess appointment if that situation arises.”
“We have some tools in our toolbox to stymie such an action and we are ready to use all of them,” Schumer said. “Any time.”
Schumer added that he can’t imagine that the Republican leadership “would be complicit in creating a constitutional crisis.”
After Trump’s latest tweets targeting Sessions, some of the most prominent Republican members of the Senate Judiciary Committee took to defending the attorney general who now finds himself under fire.
“I think he’s doing what he believes he’s obligated to do under the rules that govern attorney generals and that, in order to restore the credibility of the Department of Justice and the FBI, something we sorely need after the last administration, that he made the right decision to recuse himself,” Republican Sen. John Cornyn of Texas, the Senate Majority Whip, told CNN. “I happen to agree with him that he did, having participated in the campaign like he did.”
Republican Sen. Lindsey Graham said in a statement that Trump’s Tuesday morning tweet aimed at Sessions was “highly inappropriate.” The South Carolina senator called Sessions “a rock-solid conservative” who “believes in the rule of law.”
“President Trump’s tweet today suggesting Attorney General Sessions pursue prosecution of a former political rival is highly inappropriate,” Graham said. “Prosecutorial decisions should be based on applying facts to the law without hint of political motivation. To do otherwise is to run away from the long-standing American tradition of separating the law from politics regardless of party.”
Elsewhere, some of the president’s top spokespeople said nothing to downplay Trump’s latest blasting of Sessions. On conservative commentator Hugh Hewitt’s radio show, new White House communications director Anthony Scaramucci said it was “probably right” to assume Trump wants Sessions gone.
And on “Fox & Friends,” White House press secretary Sarah Huckabee Sanders said Trump’s frustration with Sessions “hasn’t gone away.”
“And you know, I don’t think it will,” she added.
For his part, Sessions, whom Trump called “beleaguered” on Monday, is growing upset at the president, allies told The Daily Beast. But those same sources said the attorney general has no plans to quit his post. In a press conference last week, Sessions said, “The work we’re doing today is the kind of work we intend to continue,” adding that he is “totally confident that” he and Deputy Attorney General Rod Rosenstein “can continue to run this office in an effective way.”
The spark that ignited this latest fire came during an interview Trump held with The New York Times last week. in it, he ripped Sessions for recusing himself from all investigations related to the campaign, which led to Rosenstein having oversight of the Russia investigation. Rosenstein later appointed former FBI Director Mueller as special counsel after Trump abruptly fired FBI Director James Comey.
“So Jeff Sessions takes the job, gets into the job, recuses himself,” Trump said, adding, “Frankly, I think [that] is very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, ‘Thanks, Jeff, but I can’t, you know, I’m not going to take you.’ It’s extremely unfair, and that’s a mild word, to the president. So he recuses himself.”
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