A couple of days ago I posted on the Jeff Sessions kerfuffle and noted that there was a possibility that Trump would dismiss Attorney General Jeff Sessions during the Senate’s August recess and use a recess appointment to circumvent the need for Senate confirmation until after the new session of Congress begins in 2019. Apparently, I wasn’t the only one:
President Trump has discussed with confidants and advisers in recent days the possibility of installing a new attorney general through a recess appointment if Jeff Sessions leaves the job, but he has been warned not to move to push him out because of the political and legal ramifications, according to people briefed on the conversations.
Still raging over Sessions’s recusal from the Justice Department’s escalating Russia investigation, Trump has been talking privately about how he might replace Sessions and possibly sidestep Senate oversight, four people familiar with the issue said.
The plan has a lot to commend it if Trump is really serious about forcing Sessions out. There is zero probability that the ally Trump wants in the AG slot will get through the Senate with the Russia probe underway. In fact, Senator Charles Grassley publicly warned that the Senate would not get around to confirming a new AG until sometime next 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
On the other hand, he could appoint anyone he wanted to AG during a recess appointment. The replacement would be able to serve until the new session of Congress begins in 2019. If the goal is to fire Mueller, we can expect that he’d have to fire deputy attorney general Rod Rosenstein as well. He could be replaced by recess appointment, too. This is not to minimize the political sh**storm that would erupt in DC but whether that would hurt Trump nationally is certainly an open question.
How can this be stopped? Only by the Senate not going into recess.They do this by carrying out what are called “pro forma sessions” where the presiding officer calls the Senate to order and then immediately adjourns. The Senate did this under Bush and Obama to prevent recess appointments. Obama declared that the pro forma sessions were a sham and that he could still make recess appointments but the Supreme Court disabused him of that notion (Canning vs. NLRB).
The Democrats are claiming they can force the Senate to use pro forma sessions and their minions in the press are claiming it as fact:
This is all a moot point. The Senate isn't going to formally recess. So no recess appointment. https://t.co/MkWLU5FJQ0
— Ben Pershing (@benpershing) July 27, 2017
That may come to pass but I can find no evidence that Pershing’s statement reflects anything more than his opinion.
But the storm may be moderating. Thus far, today, Trump hasn’t mentioned Sessions on Twitter.
The Post says:
But others involved in the discussions have concluded that Trump is merely venting with his continued assault against Sessions — one described it as “an emotional exercise,” while another called it “just a rough-up job.” They said Trump has neither fully articulated nor set in motion a plan to replace Sessions.
By Wednesday afternoon, just hours after the president’s latest broadside against the attorney general, several officials said they thought the storm had passed: Mr. Trump would let Mr. Sessions stay in office, at least for now. If he were going to fire the attorney general, they said, he would have already done so. But his anger was deep, they added, and nothing was certain when it came to the volatile president. Sharing the president’s frustration have been people in his family, some of whom have come under scrutiny in the Russia investigation.
By the afternoon, however, the White House seemed to have subtly moderated the tone, shifting to a more moving-forward message.
“He’s obviously disappointed but also wants the attorney general to continue to focus on the things that the attorney general does,” Sarah Huckabee Sanders, the White House press secretary, said, referring to the president. “He wants him to lead the Department of Justice. He wants to do that strongly. He wants him to focus on things like immigration, leaks and a number of other issues, and I think that’s what his focus is at this point.”
Asked why the president would criticize Mr. Sessions without firing him or asking for his resignation, Ms. Sanders said, “Look, you can be disappointed in someone but still want them to continue to do their job.”
But if there is one thing we have learned since January 20 it is that predicting what Trump will do is a very risky vocation. We’ll get a better read on the risk of a recess appointment very soon. If a GOP Senate stays in pro forma session it will be a huge sign that virtually zero trust exists between the White House and Mitch McConnell.