Donald Trump is trying to figure out how to sneak in a new, even more loyal attorney general without Senate approval, which could spark a constitutional crisis.
Boxed in and desperate for a reprieve from special counsel Robert Mueller's Russia investigation, Donald Trump is reportedly gaming out ways he could install a new loyalist attorney general without the Senate being allowed to confirm the top cop.
The wild, what-if scenarios, which revolve around Trump making an unprecedented recess appointment to replace Attorney General Jeff Sessions, highlight the extraordinary lengths the White House is wiling to go in order to short circuit the encroaching Russia investigation.
Trump is boxed in because Republicans in recent days have made it plain that there’s nearly universal GOP support for Sessions, that none of them would support his removal, and that Trump would not be able to confirm a new attorney general if he moved to fire Sessions.
“Senate Republicans are sending preemptive signals that firing the attorney general or pressuring him to resign would be a terrible move,” noted the Washington Post.
On Wednesday, Sen. Chuck Grassley (R-IA) made it plain that there was zero appetite to confirm a new attorney general this year:
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
With Republicans standing in the way of their own president, Trump’s only remaining option would be to somehow get Sessions to leave office and then go around the Senate’s back by making a recess appointment for a new attorney general.
For the far-flung plan to work, Sessions would first have to be removed, either directly by Trump or Sessions deciding to quit. Then, while Congress is away in August, Trump would announce his recess appointment to the attorney general job and that person could serve through 2018 without Senate confirmation.
The long view is that a new, loyalist attorney general would play more aggressive defense for Trump with regard to Mueller’s Russia investigation, or even fire Mueller from his special counsel post.
Any of those moves — firing Sessions, making a recess appointment, or dismissing Mueller — would certainly spark a constitutional crisis. As Sen. Lindsey Graham (R-SC) said, "If Jeff Sessions is fired, there will be holy hell to pay."
Meanwhile, the law is not on Trump’s side for recess appointments. Presidents can only make the rare move when the Senate is formally in recess for more than 10 days. And for that formal recess to take effect, there needs to be 60 votes agreeing to the move. Democrats will oppose any recess vote under Trump, which means there won't be 60 votes.
After President Barack Obama made recess appointments when the Senate wasn’t technically in recess, the Supreme Court ruled unanimously that he could not.
How radical is Trump’s attempt to push Sessions out of his attorney general job? In 1868, Congress impeached President Andrew Johnson for trying to remove Secretary of War Edwin Stanton from his cabinet position without the consent of Congress. At the time, the move was in violation of the Tenure of Office Act.
Johnson survived his impeachment trial in the Senate, but the move highlighted how rare and deeply controversial it is for a sitting president to try to dismiss one of his cabinet members.
The fact that Trump wants Sessions gone because he won’t protect the president from a gathering criminal investigation makes any dismissal of the attorney general, or a looming recess appointment, even more dire.