Last Friday night, the Washington Post reported that U.S. intelligence officers had intercepted a communication from former Russian ambassador Sergey Kislyak in which Kislyak relayed that Jeff Sessions had, during the campaign, discussed the policies the Trump administration might adopt toward Russia. In his confirmation hearing, Sessions had denied having those conversations. The news follows the President’s New York Times interview, in which he said that he would have appointed someone else as Attorney General had he known that Sessions would recuse himself from the Russia investigation, and that it was “very unfair” for Sessions to do so. (Sessions was required to recuse himself under any sensible understanding of the applicable laws.) Since then, the President had repeatedly neg-ed Sessions on Twitter (for failing to investigate Hillary Clinton) and told the Wall Street Journal that he’s “disappointed” in Sessions.
So what now? There are a few options; they range from bad to really bad, and unlikely to very unlikely. In no particular order:
Option 1: Sessions stays. This option would look like the status quo—if the Post story is true, and if Kislyak’s recollection of the conversation is accurate, the nation’s highest ranking law enforcement official will have lied under oath, and he will face no consequences for doing so. He will continue to enact aggressive anti-civil-libertarian reforms, roll back civil rights enforcement, enable voter suppression, impose draconian criminal law policies that do not enjoy widespread support, and otherwise confirm that he is everything Coretta Scott King warned us he would be.
Option 2: Trump fires Sessions. There is confusion as the President works through the various succession options, which Steve Vladeck has laid out. (Senate Democrats have vowed to keep the Senate in pro forma sessions that would preclude the President from making a recess appointment. But some Republicans would need to agree to those pro forma sessions in order to make them happen and preclude a recess appointment.)
Option 3: Congress impeaches Sessions. Pigs fly.
I’m not going to work through the relative likelihood of these options. Instead, I’m going to spell out how option number two would work, through the lens of Trump’s decision to fire Jim Comey.
The possibility that Trump would fire Sessions is a curious one. On the one hand, there are numerous indications that Trump wants to do so. On the other hand, the only changed circumstance that Trump could point to as a reason to fire Sessions concerns the undisclosed contacts between Trump’s campaign and Russian officials (aka the subject of “THE GREATEST WITCH HUNT IN AMERICAN HISTORY”). That might not be a story that Trump would want to go along with.
But maintaining a coherent approach to the world hasn’t stopped Trump from offering wildly implausible reasons for firing someone before. When Trump fired Jim Comey, he signed off on some documents that suggested he fired Comey because Comey had improperly commented on the investigation into Hillary Clinton’s use of a private e-mail server. Trump had previously applauded Comey’s comments. So it’s hardly as if Trump is above an about face where it suits his purposes.
Trump could also make up other reasons to fire Sessions, just as he did with Comey. Maybe Trump will say that Sessions’ “civil rights” or “civil liberties” record led Trump to reconsider Sessions’ suitability for the position of Attorney General. Maybe Trump will even think that Democrats will celebrate him firing Sessions, just as he purportedly thought they’d rally around his firing Comey. That’s no less believable than the reasons Trump gave for firing Comey, such as there being “low morale” or a “mess” among the FBI rank and file.
Trump could also fire Sessions for Sessions’ undisclosed communications with Russian officials or Sessions’ civil rights record, but then later admit that he really fired Sessions in order to bring the Russia related investigation to a close and find an Attorney General who would fire special counsel Robert Mueller. That too would be similar to what Trump did with Comey.
No matter why Trump fires Sessions (if he ultimately does so), the question will shift to who will replace Sessions, and how Congress will react.
If Congress decided to get woke and care about the President’s unseemly and troubling approach to addressing Russian interference in the election, there would be several questions it might raise at a confirmation hearing. For example, will Trump ask the new Attorney General to give him an oath of personal loyalty? Will Trump expect that person to terminate the special counsel’s investigation? Trump’s single-minded focus on Sessions’ handling of the Russia-related investigation and “unfair[ness]” to Trump might suggest he will. Will the new Attorney General also have some later-discovered communications with Russian officials, or financial ties to Russia like so many of Trump’s inner circle? And should the new Attorney General even be allowed to supervise the Russia investigation, or should that remain the purview of Rod Rosenstein?
But as Steve explained, it’s possible there won’t be any confirmation hearing at all, given the other options that Trump has for appointing a new Attorney General. Congress could, of course, force these questions on the executive in other ways—such as by refusing to allow a recess appointment, holding up funds to the executive, threatening to do something legislatively about the President’s violations of the emoluments clause, ordering more uncomfortable hearings.
But I’m not exactly optimistic that they will do so. When asked about Sessions’ role as Attorney General, Paul Ryan said:
“The President gets to decide what his personnel is … He’s the Executive Branch. We’re the Legislative Branch. It’s up to president to decide what his personnel decisions (are) and any possible fallout that comes from that. What we’re focused on here is doing our jobs ... So we’re not focused on micromanaging the DOJ.”
To be sure, various Senators have expressed support for Sessions. But we’ve heard statements like that before—about how troubled or concerned Senators are with something the President has done or said. We heard statements to that effect when the President fired Comey. But nothing really came of them. Maybe next time will be different. Or maybe not.