Law & the Courts

Upheaval at Justice

President Trump speaks during a swearing-in ceremony for former Attorney General Jeff Sessions in Washington, D.C., February 9, 2017. (Kevin Lamarque/Reuters)

Donald Trump requested, then accepted, Jeff Sessions’s resignation the day after the election. It was a predictable move: The relationship between the two long ago became irreparable, and Trump telegraphed Sessions’s impending departure back in August.

Not that Trump was justified in treating Sessions the way he did. The president was needlessly cruel to a good and public-spirited man for reasons that had nothing to do with his performance on policy. Sessions compiled a solid conservative record from the day he took the helm of the Justice Department, working to rein in the excesses of the Obama administration on policing and Title IX. On immigration, he returned to a serious attempt to enforce the laws, although the child-separation policy at the border was a debacle. Nonetheless, the president, unable to forgive Sessions’s March 2017 decision to recuse himself from the Russia investigation, subjected him to a constant campaign of humiliation and mockery on Twitter and in public statements. It didn’t matter that Sessions was Trump’s first Senate endorser and served him loyally, even when the loyalty wasn’t returned.

Sessions’s recusal may have been broader than legally necessary, but it was, politically speaking, unavoidable. It came after he informed Congress of his previously unmentioned meetings with Russian ambassador Sergey Kislyak during the presidential campaign in his capacity as an adviser. Trump took Sessions’s recusal as a personal betrayal, when it was necessary to maintain the appearance of independence and propriety on which his office depends.

Now that independence is being called into question as Trump has installed Matthew Whitaker, Sessions’s former chief of staff and a former U.S. attorney for the Southern District of Iowa, as acting attorney general. Democrats who once made absurd accusations about Sessions’s character have suddenly decided that his ouster — fully within presidential authority — amounts to a “constitutional crisis.”

On spurious grounds, they are calling on Whitaker to recuse himself from supervising Mueller’s probe. Before his appointment to DOJ, Whitaker ran a legal watchdog group and opined about the scope of the Russia investigation, which he felt needed clarification, and the nature of presidential power, which he thinks is wide-ranging. On CNN, he discussed steps the administration could hypothetically take to curtail the probe. But he never advocated limiting the resources of the investigation, and his views on presidential authority are well within the legal mainstream. More to the point, his résumé does not show a conflict of interest of the sort that would necessitate recusal.

Less clear is the issue of whether Whitaker’s appointment passes muster under the Constitution’s appointments clause, which requires that the Senate confirm “principal officers” appointed by the president. In a 2003 memo, the DOJ’s Office of Legal Counsel laid out its position that temporary positions do not require confirmation, presumably the standard the White House is following. But Justice Clarence Thomas suggested otherwise in a 2016 concurring opinion, and some textualists have weighed in to that effect. The question remains unresolved.

In any case, it’s best that the White House nominate someone else for the permanent post. The notion that Whitaker is simply a Trump lackey is misbegotten, but attorney general is a serious post that requires someone with more stature and experience, especially at such a fraught time.

It’s unclear whether Trump has designs on firing the special counsel now that Sessions is out of the picture, but we continue to believe that would be wrong — and a mistake. Mueller’s investigation could probably use more oversight or clearly defined guardrails, but it is far enough along — with the White House having rather fulsomely cooperated, despite Trump’s animadversions — that firing him would accomplish nothing. Incoming Judiciary Committee chairman Jerry Nadler could as his first official act call for televised hearings and ask Mueller to tell the public everything he knows.

In short, firing the special counsel remains a bad idea, whether Jeff Sessions is attorney general or not.


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