This was Donald Trump on Thursday morning:
QUESTION: And can you give us clarity, sir, on your thinking currently, now after the midterms, about your attorney general and your deputy attorney general? Do they have long-term job security, or…
TRUMP: I’d rather answer that at a little bit different time.
We’re looking at a lot of different things, including Cabinet. I’m very happy with most of my Cabinet. We’re looking at different people for different positions. You know, it’s very common after the midterms. I didn’t want to do anything before the midterms.
—Transcript, White House press conference, Nov. 7, 2018 (11:30 am)
NEW: Former Attorney General Jeff Sessions exits the Department of Justice to applause by colleagues and staff after submitting his resignation at Pres. Trump’s request. https://t.co/RZ83KqX2u4 pic.twitter.com/Ss1W0bRguf
— This Week (@ThisWeekABC) November 7, 2018
Well, that didn’t take long. But it was a long time coming. Not long after that press conference, the Attorney General was shown the door. When he asked the White House chief of staff if he could at least stay through Friday, the answer was no.
It’s not unusual for presidents to make cabinet and other key personnel changes right after a big election (those who’ve followed the White House for a while remember well, for example, the resignation of Secretary of Defense Donald Rumsfeld the day after the 2006 midterm election)…so what is it that sets apart the “resignation” of Trump Attorney General Jeff Sessions?
Let’s start with the scare quotes around “resignation.” As Sessions made clear in his letter, he submitted the resignation at the president’s request. It’s understood that many cabinet resignations happen this way; few and far between, though, are the resignation letters that spell it out explicitly. It’s worth noting because, had President Trump fired Sessions outright, Trump would not be able to simply fill the vacancy he’s created at the top of the Justice Department with another Senate-confirmed Executive-branch employee; under the 1998 Federal Vacancies Reform Act; because Sessions “resigned,” he can. This means he can circumvent Senate confirmation of an eventual permanent replacement, should the political atmosphere around the Justice Department and the Russia investigation become too hot.
By resigning rather than being fired, Sessions mooted the question about whether the Federal Vacancies Reform Act of 1998 applies to vacancies created through firing.
It clearly applies here., and Whitaker is clearly covered by 5 U.S.C. § 3345(a)(3):https://t.co/U3QpULJ4G3 https://t.co/k5W3WBUB5S
— Steve Vladeck (@steve_vladeck) November 7, 2018
Sessions’ resignation is also what allowed Trump to install Matthew Whitaker, Sessions’ chief of staff, as acting attorney general, rather than following the line of succession—which would mandate that Deputy Attorney General Rod Rosenstein become the acting attorney general. You may remember seeing those names in opposition before: in September, when it looked as if Rosenstein’s resignation was imminent after revelations that he had suggested secretly recording Trump, it was Whitaker’s name that emerged as a potential replacement.
In other words, Whitaker’s the guy that Trump has wanted as his man at Justice for some time now.
So how long has the plan to oust Sessions been in the works? Another funny thing about that resignation letter—it’s not dated. But Trump has made his displeasure with his attorney general clear almost from the moment in March 2017 when Sessions recused himself from overseeing the probe into Russian interference in the 2016 election—and possible collusion with the Trump campaign—then being conducted by now-former FBI Director James Comey. Sessions claimed that the reason for his recusal was nothing more than adherence to Justice Department rules, given his position, previous to being named attorney general and while still a U.S. Senator, as an adviser to and surrogate for the Trump campaign. But Sessions recusal came directly in the wake of revelations by the Washington Post that he had met twice with Russian Ambassador Sergey Kislayak during the campaign, meetings that he did not reveal during his Senate confirmation hearing.
Sessions’ recusal put the Russia investigation in the hands of Deputy Attorney General Rod Rosenstein. It was Trump’s firing of Comey in May, for which he used a letter from Rosenstein criticizing Comey’s handling of the Clinton email probe as a pretense, that led Rosenstein, little more than a week later, to appoint Mueller as special counsel to take over the Russia investigation.
As emerged later in a scoop by the New York Times, Trump had worked behind the scenes to try to prevent Sessions from recusing himself, fearing that his recusal would mean losing control of the Russia inquiry. Trump is reported to have said that he expected an attorney general to play the role of presidential protector, invoking Robert Kennedy’s stint as attorney general in his brother John’s administration.
With the appointment of Mueller as special counsel, it appeared Trump had lost whatever sway over the inquiry he may have had before Sessions’ recusal. Not long after, Trump put his simmering displeasure with his attorney general on public display in a series of twitter rants.
The first, in July 2017, describing Sessions as “beleaguered,” inspired speculation that Sessions wasn’t long for his job.
So why aren’t the Committees and investigators, and of course our beleaguered A.G., looking into Crooked Hillarys crimes & Russia relations?
— Donald J. Trump (@realDonaldTrump) July 24, 2017
Over time, though, Trump’s twitter broadsides against Sessions became, if not routine, then at least the sort of periodic eruption we’ve come to expect from this president. Most revealing, perhaps, were a series of tweets that essentially read as: If Sessions had told me that he’d do the right thing, I never would have picked him for the job.
The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn’t tell me he was going to recuse himself…I would have quickly picked someone else. So much time and money wasted, so many lives ruined…and Sessions knew better than most that there was No Collusion!
— Donald J. Trump (@realDonaldTrump) June 5, 2018
Finally, this August, Trump stopped tiptoeing around the subject and let us all know how he really felt.
..This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 Angry Democrats that are doing his dirty work are a disgrace to USA!
— Donald J. Trump (@realDonaldTrump) August 1, 2018
Now, with the midterm elections out of the way and a Senate absent John McCain and the man Lindsey Graham once was and soon to be missing Jeff Flake, Trump has made his move. Remember: Deputy Attorney General Rosenstein only had control of the Mueller probe because his boss had recused himself; with Sessions gone, responsibility for the special counsel will be placed once again in the hands of the top man at Justice—who is, for now at least, Whitaker.
Tweets aside, Trump’s choice of Whitaker would seem to telegraph his intentions. Whitaker has been described as a Trump loyalist and as being the White House’s “eyes and ears” in the Justice Department. More than that, though, Whitaker, while a legal commentator for CNN, wrote an opinion piece in August 2017 in which he deemed President Trump “absolutely correct” in viewing any investigation by Mueller of Trump business and family finances as “crossing…a red line”—even if such lines of inquiry were used to encourage subjects of the Russia investigation to cooperate. Any movement by Mueller in that direction, Whitaker wrote, would render the investigation a—wait for it—“witch hunt.” Deep in the piece, there is this line, which almost seems to anticipate what Rosenstein would and wouldn’t do, and why he would not become the actual acting attorney general: “It is time for Rosenstein, who is the acting attorney general for the purposes of this investigation, to order Mueller to limit the scope of his investigation…”
A month after writing that piece, Whitaker was hired as Sessions’ chief of staff.
That op-ed wasn’t the first time Whitaker held forth on the Mueller investigation. A month earlier, he had laid out a scenario wherein Trump might remove Sessions, with a replacement defunding Mueller’s investigation to the point where it would be unable to continue in anything but name.
As CNBC reports, Whitaker will be assuming control of the special counsel investigation. Meanwhile, Mueller and his probe have stayed out of the headlines in recent months, hewing to Justice Department practice of avoiding revelations in investigations with potential political implications in the 60 days before an election. In the absence of actual news from the special counsel’s office, rumors have swirled about a report or additional indictments coming any day now that the midterms are over—Donald Trump, Jr., the president’s son, has reportedly told associates recently he might face indictment.
If Trump’s aim in getting rid of Sessions is to fire Mueller or otherwise gut his investigation, one wonders how the special counsel—who has presumably seen this move to get rid of Sessions coming along with everyone else—might have prepared for this moment. If Mueller has sealed grand jury indictments connected to the investigation, for example, that part of the investigation may already be out of the hands of anyone at the Justice Department. But for any investigatory or prosecutorial moves Mueller may want to make going forward, Trump may have found a way to tie his nemesis’ hands—even if he stops short of firing him outright.