As Donald Trump’s public castigations of Jeff Sessions have intensified over the past week amid reports that the president might fire the embattled attorney general, possibly as part of a broader strategy to oust special counsel Robert Mueller, the underpinnings of Trump’s version of the “Saturday Night Massacre” have come into focus. And as it was with Richard Nixon, the question for Trump is not so much what is permissible under the law, but what such a stroke might awaken. “Sometimes the least important questions here are the ones about legality and the most important questions about the political dynamics,” Josh Chafetz, a constitutional law professor at Cornell Law School, told me. “It’s not about what is the best reading of law, so much as it is—what is going to cross the line, especially for Republicans in Congress? That’s what we need to figure out and we may not know the answer to that until it is crossed, if it ever is.”
Trump’s attacks on Sessions began last week when, during an interview with The New York Times, he said that he never would have appointed the Alabama senator to head the Justice Department if he had known that he would recuse himself from matters related to Russia’s interference in the presidential election. In the days since, he has fired off a series of tweets attacking the “beleaguered” top lawyer for his “VERY weak position on Hillary Clinton crimes” and for not stemming the deluge of intelligence leaks. “It’s not like a great loyal thing about the endorsement . . . I’m very disappointed in Jeff Sessions,” Trump said in an interview with the Wall Street Journal. “If Jeff Sessions didn’t recuse himself, we wouldn’t even be talking about this subject,” he continued, referring to the ongoing F.B.I. investigation. When asked whether he would fire Sessions, Trump demurred. “I’m just looking at it . . . I’ll just see. It is a very important thing.”
A number of Republican senators publicly announced their support for Sessions—though most stopped short of full-throated criticism of Trump, taking the tack of defending their colleague of 20 years rather than rebuking the president. Oklahoma Senator James Inhofe said “I’m 100 percent for the president, but I really have a hard time with this.” Orrin Hatch said of Trump, “I’d prefer that he didn’t do that. We’d like Jeff to be treated fairly.” Thom Tillis of North Carolina said, “I guess we all have our communication style and that is one that I would avoid,” and added that Sessions’s showing independence from the president is “a healthy thing.” Lindsey Graham went furthest, writing on Twitter that Trump’s suggestion that Sessions should “pursue prosecution of a former political rival is highly inappropriate.”
But House Speaker Paul Ryan poured water on the burgeoning constitutional crisis, at least for now. “The president gets to decide what his personnel is, you all know that. He’s the executive branch. We’re the legislative branch. He determines who is hired and fired in the executive branch—that’s his prerogative,” the Wisconsin lawmaker said. “If he has any concerns or questions or problems with the attorney general, I’m sure he’ll bring it up with him himself.”
Ryan isn’t wrong that a president has the authority to dismiss his attorney general, but the net response from Republican lawmakers to Trump’s threat, arguably, reads like an invitation to fire Sessions. “There are informal ways, members of Congress can communicate to the president that they won’t support him if he does this, that there will be a much more definitive break then there has been,” Louis Michael Seidman, a constitutional law professor at Georgetown University, told me. “There are ways around the formal checks, but I think the informal checks are more important. Republicans on the Hill can signal to him that there are limits to what they are willing to accept. Now whether they do that or not, it’s anybody’s guess.”
The concern among lawmakers on Capitol Hill is that Trump views firing Sessions as the first step toward firing Mueller. When Sessions recused himself, Deputy Attorney General Rod Rosenstein assumed the lead on the investigation and, following Trump’s abrupt decision to oust F.B.I. Director James Comey, appointed Mueller. Now, the authority to fire Mueller lies with Rosenstein, whom Trump could order to dismiss the special counsel. If the deputy attorney general refused and resigned, the burden would then fall to Associate Attorney General Rachel Brand, and on down the D.O.J. line of succession determined by the Trump administration. But if Trump replaced Sessions, his successor would assume the top position in the D.O.J. food chain and have the authority to get rid of Mueller.
There is, of course, a hitch in Trump’s plan. Attorneys general require Senate confirmation, meaning Trump would need the cooperation of lawmakers on the Hill. Trent Lott, the former Senate majority leader and whip, said Sessions’s firing would not be welcomed. “[Trump] would have difficulty finding a replacement for Sessions because Sessions is well-liked and respected in the Senate,” Lott told me. “This would not be well-received. Even people that disagree with him philosophically would not like the way that he was treated. And the idea that it might be setting up something to fire Mueller or other people at this point, that is just outrageous, it is just not going to happen.”
The Senate, which like the House, is controlled by Republicans, could easily slow or outright oppose a Sessions replacement, leaving Rosenstein in charge of the Russia investigation and Trump with few options. Theoretically, Trump could also appoint a new attorney general during a Senate recess longer than 10 days, which would allow him to circumvent the need for Senate confirmation until the end of the session. But Lott said this is unlikely. “Generally speaking, the Senate doesn’t like to leave it open for presidents to make appointments of either party,” he told me. And Senate Minority Leader Chuck Schumer quickly dismissed this possibility on Tuesday, indicating that Democrats would hold “pro forma” sessions to prevent the Senate from adjourning. “Let me state for the record now, before this scheme gains wings, Democrats will never go along with the recess appointment if that situation arises,” Schumer said.
Another option for Trump would be appointing a new A.G. under the Federal Vacancies Reform Act of 1998, which is triggered when a Cabinet member “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” and would require Trump to appoint an already Senate-confirmed individual to the role. But Chafetz says that this option, too, is unlikely—unless Sessions resigns, which he said he won’t do. “There is an argument that firing was intentionally left off that list because you don’t want the president to be able to continuously unilaterally fill offices by firing existing office holders,” he said. “So there is no clear sort of answer on that one, but that is one of the reasons why the Vacancies Reform Act route might be a little complicated.”
Trump has few good options. But that doesn’t mean he won’t continue to pursue them. “I think we are moving inexorably toward a constitutional crisis. Donald Trump, I think is not going to allow members of his family to be indicted, he is not going to allow a full exploration of his financial dealings and he will take the measures he has to take in order to stop that and what we are seeing is his laying the groundwork for doing that,” Seidman warned. “At the moment it is not clear to me what the exit ramps would be.”
Chafetz concurs. “The more Trump ratchets up the confrontation,” he says, “the more it looks like he is trying to get around the checks that the executive branch sort of puts on itself—things like appointing a special prosecutor—the more likely he is to sort of lose those marginal members of the Republicans caucus in the Senate and that is all the more true the more unpopular he remains broadly.”
The reality for Trump is that his Russia headache will continue, regardless of what actions he takes. “From a practicality standpoint, if they think this through, this Russia investigation is going forward. Period,” William Jeffress, a D.C. trial attorney who represented I. Lewis “Scooter” Libby in the investigation into the leak of Valerie Plame’s identity under George W. Bush, told me. “There is no way he is going to stop it by firing people or replacing people. There are just too many actions that Congress can take—and would take in my opinion—to ensure that there is an independent investigation . . . it would just create a firestorm.”
Ousting Mueller, however, could be the final straw forcing Republicans to break with Trump and move toward impeachment, the proceeding for which would begin in the House. “Whether they legally meet the definition of Obstruction of Justice or not, they become potentially impeachable offenses,” Jeffress said. Robert Bennett, a top Washington white-collar lawyer who represented President Bill Clinton during the Monica Lewinsky investigation, echoed the sentiment. “It would be very ill-advised to fire Mueller . . . my own personal opinion is that if he were to fire Mueller that could result in many Republicans supporting an impeachment,” Bennett said. “I think that could be a line that the president should not cross.”
Republicans, however, have demonstrated a nearly limitless capacity to excuse Trump’s violation of political norms. And with Ryan effectively giving the president carte blanche to make whatever “personnel” decision he sees fit, it remains unclear whether the G.O.P. will have the stomach to stand up to the president if he decides to test the limits of his powers. “The bottom line is that if President Trump can get away with shutting down this investigation, then he could really get away with anything,” Seidman said. “Republicans on the Hill are going to have a hard choice to make. And the choice they make is going to determine our future as a Republic. I think it really has come to that.”
