If Sessions Departs, Trump Has 3 Options to Replace Him

WASHINGTON — 

U.S. President Donald Trump's sustained campaign of criticism of Attorney General Jeff Sessions, both on Twitter and in interviews, has fueled widespread speculation that Trump is trying to get Sessions to resign, or plans to fire him.

While the White House has played down the prospect, powerful Republican allies of Sessions, as well as Democrats, are warning the president against replacing the former Alabama senator.

Senator Chuck Grassley, chairman of the Senate Judiciary Committee, has said his panel is not prepared to hold hearings on a replacement this year.

The Iowa Republican wrote on Twitter late Wednesday that his committee's agenda is full for the rest of this year, and there is "no way" it could consider another nominee for attorney general.

That would leave Trump with three options, should he choose to replace his attorney general on a temporary basis.

Option 1

If Sessions either resigns or is fired, the first option would be to follow the Justice Department's order of succession. In this case, Deputy Attorney General Rod Rosenstein would automatically become acting attorney general.

But Trump has expressed antipathy toward Rosenstein. The career prosecutor assumed the No. 2 spot in the Justice Department earlier this year, but drew the president's ire after Rosenstein appointed Special Counsel Robert Mueller to lead the investigation into Russian meddling in last year's election.

William Yeomans, a former Justice Department official, said Trump is unlikely to let Rosenstein take the department's helm.

"He has made it clear he has a low regard for Rosenstein," said Yeomans, who teaches at American University's Washington College of Law.

Option 2

A second option is to circumvent the department's normal succession plan altogether and make an interim appointment under the Vacancies Reform Act of 1998.

The little-known law allows the president to appoint acting heads of departments for up to 210 days when the incumbent resigns or is unable to perform his duties. In the case of the attorney general, there is a caveat: The candidate must be a Senate-confirmed official and cannot be asked to fill the position permanently.

In theory, Trump could look outside the Department of Justice for a successor to Sessions. However, his choices would be limited to the 50 or so of his appointees the Senate has so far confirmed.

Nevertheless, Yeomans said, the Vacancies Reform Act "would allow him to shop around for someone who is more sympathetic to his views."

There is another wrinkle: While Trump can make an interim appointment if Sessions resigns, it is less clear he can do so if Sessions is fired.

Steve Vladeck, a professor of law at the University of Texas at Austin, said: "It's not that common for a Cabinet official to stand up to his president on principle and force him to fire him. And it's especially problematic in the case of the attorney general, because the attorney general is alone among Cabinet officers in possessing a rather independent constitutional role as the nation's chief law-enforcement officer."

Courts have not weighed in on the question, but the Trump White House could explore the option, and it would have an argument to make.

"You can make the argument that someone who's been fired is unable to perform the duties of the office," Yeomans said. "The other argument, of course, is that there have to be some extraneous reasons why the person is unable to perform the duties of the office."

Under the circumstances, Vladeck said, "The only leverage that Attorney General Sessions has is to not resign, and to force President Trump to actually take the dramatic step of firing him."

Option 3

Finally, there is the option to make a recess appointment. Recess appointments, made while the Senate is in recess for at least 10 days, can last through the current session of Congress, which ends in January 2019.

In recent days, Trump has reportedly floated the idea among his advisers. However, Republicans and Democrats have agreed to have pro forma sessions during the August break, so the Senate technically will remain in session.

Senate Democratic leader Chuck Schumer has said "Democrats will never go along with the recess appointment if that situation arises."

"We have some tools in our toolbox to stymie such action," Schumer said on the Senate floor. "We'll be ready to use every single one of them, any time, day or night."

Senator John Kennedy, a Republican member of the Judiciary panel, urged Trump not to replace Sessions, saying it "will be very, very difficult" to confirm a new attorney general.

Trump-Sessions split may be easing

"I hope he and the president can sit down and work out whatever differences they have," the senator from Lousiana told VOA.

In the midst of talk about these scenarios, Sessions and Trump appear to be headed for a tenuous rapprochement.

Trump refrained Thursday from another round of what had become a daily barrage of disparaging comments about his embattled attorney general, as he prepared to travel to the New York City area to talk about the deadly street gang MS-13.

White House Press Secretary Sarah Huckabee Sanders told reporters on Wednesday that the president does not want to remove Sessions.

"You can be disappointed in someone but still want them to continue to do their job," Sanders said. "And that's where they are."

VOA correspondents Cindy Saine and Michael Bowman contributed to this story.

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