President Donald Trump continued his attacks on Attorney General Jeff Sessions on Tuesday morning, tweeting that he has has taken “a VERY weak position” on Hillary Clinton’s “crimes” and “leaks” from the intelligence community.
“Ukrainian efforts to sabotage Trump campaign – ‘quietly working to boost Clinton.’ So where is the investigation A.G. @seanhannity,” Trump tweeted early Tuesday. “Attorney General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes (where are Emails & DNC server) & Intel leakers!”
Political analysts say Trump appears to be backing Sessions into a corner in the hopes that he will resign — a theory bolstered in recent days by reports that Trump is considering replacements like former New York City Mayor Rudy Giuliani and Texas Senator Ted Cruz.
Trump is reportedly still angry with Sessions for stepping down in March from the investigation into Russia’s election interference and whether the Trump campaign colluded with Moscow.
“Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job so I could choose someone else,” Trump told the New York Times last week.
Responding to Trump’s comments last week, Sessions told reporters he planned to remain in his role “as long as that is appropriate.”
But Matt Miller, a former Justice Department spokesman under President Barack Obama, thinks that Sessions can no longer afford to remain silent in the face of Trump’s public attacks.
“Sessions has a choice: either tell Trump to butt out of the DOJ’s independent decisions or quit,” Miller said on Tuesday. “Time to decide what kind of Attorney General he wants to be.”
What comes next?
Trump is also wary of special counsel Robert Mueller’s examination of his business dealings. He told the Times that it would cross a line if Mueller looked into his financial history, and has instructed his legal team to find ways to discredit Mueller and lay the groundwork for his dismissal, according to the Washington Post.
If Sessions resigned, Deputy Attorney General Rod Rosenstein would technically be next in line to serve as Acting Attorney General. But it is unclear whether Trump would let him — the president appeared to attack him on Twitter last month, raising questions about whether he would resign.
According to the Federal Vacancies Reform Act of 1998, the president “may direct anyone who holds a ‘PAS’ office — one requiring presidential appointment and Senate confirmation — to serve as Acting Attorney General for 210 days,” Steve Vladeck, a professor of law at the University of Texas School of Law, wrote on Monday.
As such, even if Rosenstein did not resign, Trump could name Associate Attorney General Rachel Brand — who has already been confirmed — as the Acting Attorney General while his Attorney General nominee goes through the confirmation process.
“If the individual President Trump desires to serve as Sessions’ successor is Senate confirmable, then nothing would stop President Trump from simply nominating the successor and naming someone else as the short-term Acting Attorney General under the Vacancies Reform Act,” Vladeck wrote.
Brand, a conservative lawyer who served in President George W. Bush’s administration before taking a job in the Justice Department’s Office of Legal Policy, could fire Mueller if Trump instructed her to, since she is not recused from the Russia investigation. But it is unlikely she would comply.
Neal Katyal, former acting solicitor general under Obama who worked with Brand at the Chamber of Commerce, told The Washington Post in May that Brand is “a top-notch analytic lawyer and really good at figuring out what is the art of the possible.”
Still, she will face a tough task: Namely, insulating the investigation from White House influence.
“Such insulation is needed for the integrity of the investigation, so that any decisions it may reach about prosecution or exoneration have credibility,” Jack Goldsmith, who worked in Bush’s Office of Legal Counsel, and Benjamin Wittes, senior fellow at Brookings and a close friend of Comey’s, wrote last month.
“This task will require backbone — and a willingness not to last long in the job.”