Yeomans Work

Trump’s Magic: Making Us Defend the Indefensible

July 28, 2017

President Trump’s stunningly inappropriate public assault on Jefferson Beauregard Sessions, his own Attorney General, puts many of us in a familiarly uncomfortable position.

We find it nearly unthinkable that Sessions ever became Attorney General, but now we find it entirely unthinkable that Trump would fire him or force his resignation. This is the same dilemma we experienced when Trump went after FBI Director James Comey. Comey’s conduct during the presidential campaign warranted his removal, but Trump’s firing of him crossed the line into obstruction of justice.

Comey’s July 2016 press conference, at which he announced that no reasonable prosecutor would indict Hillary Clinton for her handling of classified information before opining that her behavior was extremely careless, crushed longstanding Department of Justice norms. Comey usurped the authority of the Attorney General and all of the Department of Justice attorneys assigned to the matter. The FBI does not have authority to make prosecution decisions. It develops evidence and turns it over to Justice prosecutors. And, the Department does not comment on the conduct of people who are not being charged with crimes. He, then, of course, announced the reopening of the investigation to examine emails on Anthony Weiner’s computer, even though the FBI did not yet have a search warrant. Finally, he sent a letter saying the FBI had found nothing. Longstanding Department of Justice policy prohibits significant discretionary investigatory or litigative steps in close proximity to an election.

Had Clinton won the election, President Obama should have fired Comey before Clinton took office. Because Trump won and immediately exhibited utter disregard for the rule of law and a burning desire to shut down the Russia probe, Comey’s survival in office became essential.

Similarly, Sessions should never have been confirmed as Attorney General. He spent years in the Senate as a conservative throwback outlier, hovering on the far right fringes of the Republican caucus. He fumed against immigrants, opposed civil rights legislation, and blocked humane reforms to criminal laws. Despite Sessions’s devastating effectiveness at using his perch as Attorney General to implement his radical agenda – an agenda endorsed by Trump – the president over the past ten days unleashed a series of unprecedented and vicious tweets against Sessions, primarily for his decision to recuse himself from the Russia investigation, but also for being weak for failing to investigate Hillary Clinton. Sessions’s recusal from the Russia investigation was mandated by Department of Justice regulations, and his failure to pursue Hillary Clinton – which was previously endorsed by Trump –has kept us from joining the ranks of banana republics. Sadly, these decisions stand out as the only two major moves Sessions made as Attorney General that deserved universal praise – until his decision to resist Trump and remain in office.

Trump’s intent to drive Sessions from office seemed clear. It appeared unthinkable that an Attorney General who so plainly lacked the president’s endorsement could function. But then an extraordinary thing happened. Democrats voiced their objections to Sessions’s forced departure, even though they had nearly unanimously opposed his confirmation. Trump made Democrats defenders of Sessions.

More important, Republican senators pushed back. Throughout the first six outrageous months of the Trump presidency, commentators have opined that one dangerous, destructive, disgusting move after another from the president would cross a line and push Republicans to say “enough.” That finally happened with Trump’s treatment of Sessions. It helped that Sessions is a longtime member of the Senate club and that the president’s public humiliation of Sessions demonstrated not only the dysfunction of the president, but also that Trump lacks even the most rudimentary sense of decency and respect toward others. Trump’s attacks also prompted the Tea Party wing of the Republican Party – where Sessions has long found a home — to rise to Sessions’s defense.

Chuck Grassley, Chair of the Senate Judiciary Committee, announced that the Committee would be too busy to confirm a replacement for Sessions this year. That statement was more significant as the expression of a substantial crack in Republican support for Trump than for its immediate practical impact. If Trump took a moment to think (I know, I know), he surely knew that no nominee for Attorney General could make it through the Senate without giving ironclad guarantees to protect Mueller’s Russia investigation and avoid Hillary Clinton.

He surely did not intend to follow the regular rules of succession embodied in statute and Justice Department regulation that would have elevated Deputy Attorney General Rod Rosenstein to acting Attorney General. Under the Vacancies Reform Act, he could have brought in as acting Attorney General any official who had been confirmed by the Senate. Because of Trump’s incompetence in staffing his administration, that’s a very limited list of even arguably qualified people.

Some commentators, therefore, speculated that Trump actually had thought through Sessions’s departure and planned to make a recess appointment of an Attorney General who, according to the Constitution, could serve until January 2019, the end of the next session of Congress. The Senate, however, with Republican support, has made it clear that it will stymie Trump by staying in session through the scheduled August recess. The Supreme Court has said that the president cannot act during a recess shorter than ten days and approved the Senate’s recent practice – used by Republicans to block Obama recess appointments – of holding pro forma sessions every three days.

The upshot is that Sessions almost certainly will remain Attorney General for the foreseeable future. He appears determined to stay. His firing would provoke outrage and there is no good scenario for the president to follow in replacing him. So, the good news is that Trump’s effort to subvert the rule of law has been blocked temporarily. The bad news is that we retain an Attorney General intent on repealing the advances of the past 50 years in our approach toward justice.

Turning Point

The Republican resistance that allows Jeff Sessions to remain in office is even more important in context. As Trump’s ineffectiveness grows, opposition from within his party mounts. Congress – with a veto-proof majority in each house – sent to his desk for signature a Russia sanctions bill that Trump opposed. Trump’s stunning tweet announcing that transgender soldiers could no longer serve was met with something close to open defiance by the Pentagon, which said that it would take no action and continue to treat all troops with respect and dignity until it heard more from the White House. The Senate failed to pass healthcare legislation, despite the president’s threats of dire consequences and retaliation against at least one Republican senator if it failed to do so.

This past week should mark a turning point in the Trump presidency. Republican leaders made a deal to prop up Trump long enough to achieve enactment of their agenda of Obamacare repeal, tax cuts, and deregulation. As the agenda fails, and as it becomes clear that Trump is a liability, more cracks will appear. As his support dwindles, Trump will become ever more desperate and his behavior is likely to become more chaotic (welcome to the White House, Anthony Scaramucci) and more dangerous.

Trump acts as if he knows that the Russia investigation may prove fatal to his administration. His persistent tweets denouncing it as a “witch hunt,” his attacks on Mueller, Rosenstein, and acting FBI Director McCabe, and his assault on Sessions reflect his desperation. Without the political protection provided by substantive victories, he will stand exposed. Expect him to lash out.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.