Amid the flurry of activity at the Senate over repeal/replace, the Congressional investigations of the Trump clan coupled with those of the Special Counsel, scary announcements about North Korea, the ban on transgender soldiers and the president’s politicization of the Boy Scouts comes yet one more headline-grabbing conundrum: the Sessions scenario.
We all know – the president is displeased. He’s complained about his Attorney General for days in a scourge of tweets and words filled with character digs and dares. The press and pundits are all over this newest burp in the Executive branch. Will he fire Sessions? Will the 70-year old AG resign? What happens next? How would this conflict affect the probes into the Russia connection? So many questions, such drama, so much motion without movement.
However, it’s the “what-happens-next” scenario that is frightening. Taken to its furthest degree of possibility, a Trump rampage could decimate the Department of Justice.
Let’s take a look at the hypotheticals. Sessions is gone. The likeliest reason for his absence would be termination rather than resignation. His position is empty. Under the succession statute, the Deputy Attorney General Rod Rosenstein would then serve as Attorney General.
Chuck Grassley, the senior senator who heads up the Judiciary committee, has already declared that there will be no confirmation hearings for another Attorney General during 2017.
Everybody in D.C. Shld b warned that the agenda for the judiciary Comm is set for rest of 2017. Judges first subcabinet 2nd / AG no way
— ChuckGrassley (@ChuckGrassley) July 27, 2017
If Grassley prevails, that would leave Rosenstein in place as Attorney General. There is the possibility that Trump might try to fire Rosenstein and appoint an AG during the August Congressional recess. However, the Senate Democrats are preparing for this eventuality and Chuck Schumer let Trump know they will block a recess appointment.
It looks like Trump would be stuck with the #2 guy as Attorney General. He doesn’t much care for Rosenstein either. Just a month ago, he branded him as a member of the “witch hunt” in a tweet:
I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt
— Donald J. Trump (@realDonaldTrump) June 16, 2017
As the AG, Rosenstein would have no need to recuse himself from all things Russia-related, including the work of Bob Mueller. Unlike Sessions, he had no role in the Trump campaign.
Rachel Brand, the Associate AG, confirmed by the Senate just two months ago, would bump up a notch as the Deputy Attorney General. Thus far, she has been immune from a presidential tweet storm, mainly because she’s had nothing to do with the Russia investigation.
All of this brings us back to the beginning. Trump is still dealing with someone who follows the rule of law rather than obeisance to the president. In other words, as Attorney General, Rosenstein would refuse to hinder the investigation of the Special Counsel. And there’s a Deputy AG who has yet to pass or fail Trump’s loyalty test.
Still frustrated, Trump might order Rosenstein to fire Mueller, and the AG would probably quit. If that happened, Brand becomes the Attorney General.
This is where the Justice Department begins to collapse. Under the federal succession law, the next person to succeed the Deputy AG would be the Solicitor General. Noel J. Francisco is the nominee for this post. However, the Senate has yet to confirm Francisco. Interestingly, Francisco works as the principal deputy and acts as the Solicitor General. A Senate confirmation would formalize his appointment.
If Sessions and Rosenstein leave Justice (willingly or otherwise), then only a single person, Rachel Brand, remains in a formal position of influence. That is, the Senate has yet to confirm the other nominees, and those positions are temporarily filled with “acting” staff.
Should Trump try to force her hand regarding the Russia probe, and Brand refuse to budge, this could lead to an unprecedented event of catastrophic proportion. Would Trump fire Rachel Brand? Would she quit?
If either scenario played out, the one department responsible for enforcing the rule of law in this country would be impotent. The Attorney General, Deputy Attorney General and Solicitor General would be lawyers working as unconfirmed and essentially temporary employees. There would be no people in the Justice department with the power of a nominated executive: no one to combat irregularities, protect the office of Special Counsel, enforce the rule of law or protect the country against a rogue president.
This scenario is possible. Let us hope it is improbable.