Attorney General

Trump is said to mull ouster of Sessions; can the AG be replaced through a recess appointment?

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President Donald Trump and his advisers are said to be mulling the possibility of replacing Attorney General Jeff Sessions.

The idea is being discussed as Trump becomes increasingly frustrated with Sessions, whom the president has criticized for recusing himself in the probe of Russian attempts to influence the election, the Washington Post reports in a story relying on anonymous sources.

Trump has continued to criticize the former Alabama senator.

Some Trump associates view a Sessions replacement as part of a strategy to fire special counsel Robert Mueller and end his investigation into whether the Trump campaign was involved in Russian attempts to influence the election, according to the article. Mueller was appointed by Deputy Attorney General Rod Rosenstein after Sessions’ recusal.

The Post and an article by Just Security consider how Trump could find an acting attorney general and engineer Mueller’s firing. One avenue is through the Justice Department succession statute, which says the deputy attorney general may serve in case of an attorney general vacancy, and if the deputy attorney general is unavailable, the associate attorney general shall act as attorney general.

Trump could order Rosenstein to fire Mueller, and if Rosenstein quit rather than obey the order, Trump could then order Associate Attorney General Rachel Brand to fire Mueller, the Post explains. If Brand refused and quit, Trump could pick an acting attorney general who would fire Mueller.

A second option is for Trump to bypass the succession statute and instead rely on the Federal Vacancies Reform Act, according to the author of the Just Security story, University of Texas law professor Steve Vladeck. The law would allow Trump to choose a person who serves in an office that required presidential appointment and Senate confirmation to serve as acting attorney general, or to choose someone who worked in the Justice Department for 90 days within the past year at a certain pay level.

The president’s authority to bypass Rosenstein and Brand, however, “is murky,” the Post reports. According to Vladeck’s article, it’s not clear that the Federal Vacancies Reform Act applies when the attorney general is fired, and it’s not clear that it can trump the attorney general succession statute.

There is a third option, Vladeck says. Trump could make a recess appointment for attorney general during the Senate’s August break, if it lasts for at least 10 days. That person would serve until the end of the next Senate session in January 2019.

There is no indication that Sessions will step down on his own, the Post reports. At a meeting on Friday, Sessions talked about how hard he is working.

“I do my best every day,” Sessions said, “to fulfill the goals the president and I share.”

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