Wednesday gave us a spectacle never before seen in the 228-year history of relations between American presidents and their attorneys general. President Trump publicly attacked Jeff Sessions, his attorney general, as “DISGRACEFUL” for refusing to unleash his prosecutors on Mr. Trump’s political enemies — seemingly suggesting that the attorney general should quit (and not very subtly at that). Mr. Sessions, equally publicly, stood his ground. He fired back that he was acting with “integrity and honor,” and emphasized that “law and the Constitution” are his guideposts.
One of us is a former Sessions aide; the other a frequent Sessions critic. But we agree that the attorney general was right to take a stand, and that he is to be applauded for doing so. What is at stake in this dispute is nothing less than American rule of law. For that reason, Mr. Sessions should stay right where he is to defend it, including rejecting Mr. Trump’s apparent effort to force his resignation.
To understand the enormous stakes here, some context is necessary. President Trump was once a fan of the attorney general — that is, until Mr. Sessions had the nerve to recuse himself from the Russia investigation last year. Doing so was the right call legally. Mr. Sessions had served as chairman of the Trump campaign’s national security advisory committee, and applicable ethics rules require campaign officials to recuse themselves from investigations of their campaigns.
We now know that Mr. Sessions did the right thing in the face of intense pressure from the president, who had ordered Don McGahn, the White House counsel, to lobby Mr. Sessions not to recuse himself. When Mr. Sessions did so anyway, President Trump fumed and asked, “Where’s my Roy Cohn?”
Mr. Sessions’s recusal left the deputy attorney general, Rod Rosenstein, free to appoint Robert Mueller as special counsel to oversee the Russia investigation. When President Trump learned of the appointment, he reportedly unloaded on Mr. Sessions, calling him an “idiot.” The attorney general told the president he would resign and later delivered a resignation letter to the White House, though the president apparently returned it with the note “not accepted” at the top. Since then the president’s temper has periodically erupted at Mr. Sessions publicly and privately, with one report saying Mr. Trump was hoping Mr. Sessions might be embarrassed into resigning.
Wednesday’s apparent renewal of that effort was the most startling episode yet. It began when Mr. Sessions suggested that the inspector general for the Department of Justice would handle allegations advanced in a memorandum, endorsed by the Republican majority on the House Intelligence Committee, that the department had improperly obtained surveillance warrants for a former Trump campaign aide. Such a referral is a normal move for allegations of misconduct, and one that Mr. Sessions’s predecessors from both parties have frequently taken. But it infuriated President Trump, who tweeted, “Why is A.G. Jeff Sessions asking the Inspector General to investigate potentially massive FISA abuse. Will take forever, has no prosecutorial power and already late with reports on Comey etc. Isn’t the I.G. an Obama guy? Why not use Justice Department lawyers? DISGRACEFUL!”
Mr. Sessions offered this dignified response: “As long as I am the Attorney General, I will continue to discharge my duties with integrity and honor, and this Department will continue to do its work in a fair and impartial manner according to the law and Constitution.” Mr. Trump may be renewing his effort to push Mr. Sessions out, but this time, Mr. Sessions is not handing in a resignation letter.
Lest there be any doubt about that, Mr. Sessions very publicly dined Wednesday night with Mr. Rosenstein and the solicitor general, Noel Francisco. They are the second and third in the line of succession at the department, respectively, should Mr. Trump fire Mr. Sessions. The dinner sent the message that the attorney general’s colleagues support him.
This is no mere personnel flap. The principle that the president is attacking — and that Mr. Sessions and his colleagues are standing up for — is central to the administration of justice in America. It is that the awesome powers wielded by the attorney general and those who work for him should never be deployed for political purposes. Those powers can deprive defendants of their liberty, their property, even their lives. Merely investigating someone can be crushing. That should only be done when demanded by justice — not the whim of a president. It is a Solomonic solution by Mr. Sessions to refer Mr. Trump’s allegations for initial screening to a neutral fact-finder. Contrary to Mr. Trump’s tweeted suggestion, that is precisely the role of the Justice Department’s inspector general.
It is critical to the rule of law that Mr. Sessions stay right where he is. We are heartened that he refused to budge, and we hope he will continue to do so. He has satisfied honor by submitting his resignation once before. He need not do it again. Let Mr. Trump fire him if he dares.
The good news is, the president probably won’t.
First, the Russia investigation continues to hang over the president. Firing Mr. Sessions would be perceived as an effort to replace him with an attorney general who is not conflicted out of the investigation and capable of taking control of it for Mr. Trump. Doing so would create a firestorm, and keep the investigation in the news longer.
Then there is the question of legal liability for the president. A Sessions firing might, like the termination of James Comey, the former F.B.I. director, be viewed by Mr. Mueller as possible obstruction of justice. That is especially true if the special counsel is, as has been reported, already investigating the president’s July attempt to oust Mr. Sessions.
Firing Mr. Sessions would also jeopardize the president’s relationship with Senate Republicans. Senators Jeff Flake, Bob Corker and John McCain have already publicly broken ranks with the president on various matters. There are others, like Senators Charles Grassley and Lindsey Graham, whose loyalty to Mr. Sessions, their former colleague, likely runs deeper than their allegiance to the president. He is counting on Senate Republicans to serve as a firewall against the Russia investigation and much more. A Sessions firing would most likely breach it.
Finally, there would be agonizing choices to be made when it comes to selecting a replacement. If Mr. Sessions is fired, President Trump will have a hard time finding someone with the integrity required to earn Senate confirmation and the proven personal loyalty he demands.
And therein lies the problem. At the end of the day, Jeff Sessions is no Roy Cohn. He is a man of integrity who may serve at the pleasure of the president, but this week he demonstrated his fealty to the rule of law and the Constitution. We urge him to stay in his job and continue to defend the Department of Justice — and our nation — against continued attempts to politicize federal law enforcement.
Image credit: mark reinstein
*This piece was co-authored by Norman L. Eison.