Cross-posted from Politico.
Having fired Secretary of State Rex Tillerson in cold blood this week, President Donald Trump is reportedly now turning a gimlet eye to Attorney General Jeff Sessions, with a view to replacing him with Environmental Protection Agency Administrator Scott Pruitt. That alarms even Sessions’ critics, who fear Pruitt—with his proven willingness to do the president’s bidding—might interfere with, or even fire, special counsel Robert Mueller.
Tempting as the prospect of Attorney General Pruitt might seem to the president, he should resist it for three reasons. This move could be challenged in the courts, setting off a barrage of litigation. Pruitt might find himself too conflicted to touch the Mueller investigation, just as Sessions was. And the firing could well worsen the president’s exposure to obstruction of justice proceedings.
First, installing Pruitt as Sessions’ replacement would have to meet a bevy of legal requirements—no less than two statutes, one White House order, one Department of Justice order and the Constitution. Under normal circumstances, these authorities dictate that a fired (or resigned) attorney general would be succeeded on a temporary basis by the deputy attorney general, who would serve while a permanent replacement is named by the president and then confirmed by the Senate. That means Deputy Attorney General Rod Rosenstein would normally step up.
The president’s distaste for Rosenstein, however, is well known. If Trump wants to quickly sack Sessions and sideline Rosenstein by installing Pruitt, he might look to a statute known as the Vacancies Reform Act. The VRA allows the president to ignore standard operating procedure and insert a handpicked acting head of the Department of Justice for a minimum of 210 days—more than long enough to shut down the special counsel that so annoys the president.
But even if Trump tries this route—installing Pruitt as temporary attorney general—he could still run into problems. The VRA allows the president to name an acting attorney general were Sessions to “die, resign, or … otherwise [be] unable to perform the functions and duties of the office.” Trump could pick anyone who has already been confirmed by the Senate to any job in the executive branch—from Pruitt to Secretary of Education Betsy DeVos to the undersecretary for farm and foreign agricultural services—and make him or her the acting attorney general. But nowhere among the triggering events allowing such an appointment does the act expressly list firings. Several legal commentators have argued that it cannot be used by the president, as law professor Steve Vladeck put it, “to hand-pick a short-term (and, potentially, un-re-confirmable) successor.” That would make a mockery of the Senate’s constitutional “advise and consent” role.
Not everyone agrees. In 1999, the DOJ’s own Office of Legal Counsel said in an opinion that it thought the law can be used to replace fired appointees. The OLC can be notoriously protective of the president; it is the same office that last year reversed decades of guidance to say that antinepotism law did not bar the hiring of Jared Kushner and Ivanka Trump. The courts sometimes reject OLC’s views; this particular one has not been tested before a judge. No one knows how that would come out.
That’s where the VRA gets even riskier for Trump. It has a kicker: Any action taken by someone improperly installed in office “shall have no force or effect.” And anyone affected by a decision made by an illegitimate attorney general has standing to sue. Given the success plaintiffs have had in blocking so many Trump policies from the first Muslim ban forward, it does not take much imagination to envision a tidal wave of lawsuits hitting almost every move taken by Pruitt if he is appointed under the VRA after a Sessions firing. Even Mueller could go to court if he were terminated or interfered with—and if there is one thing he has demonstrated, it is that he is not afraid to bring cases.
Second, Trump’s unleashing this tsunami of litigation might be for naught. There is a reasonable case that even if Pruitt were validly appointed, he, like Sessions, would have to recuse himself from the Russia investigation. All DOJ lawyers are bound by regulation to step aside from criminal investigations if they have a “political relationship” with someone who has a substantial interest in that investigation.
Pruitt’s political relationship with the president is deep and close. He has acted as the president’s political accomplice for more than a year now. It would lead any decent lawyer to recuse himself from the Mueller probe. Just this January, Pruitt made his political allegiance to the president plain: “After meeting him, and now having the honor of working for him, it is abundantly clear that President Trump is the most consequential leader of our time,” Pruitt said. “No one has done more to advance the rule of law than President Trump. The president has liberated our country from the political class and given America back to the people.”
Of course, Pruitt has demonstrated that he has little concern about conflicts of interest or their appearance. He is already under fire for a series of ethical blunders at the EPA. Nevertheless, as they did with Sessions, the ethicists at the DOJ might insist.
Some might contend this argument goes too far. Wouldn’t any interim attorney general the president appointed be conflicted out of overseeing Mueller? Of course not. We would not object if the president had reached out to someone independent and of stature who had not sworn the kind of loyalty oath Trump prefers. But that is not Pruitt.
Finally, there is the obstruction question. Mueller is already reportedly looking at the president’s previous efforts to remove Sessions as part of a possible obstruction of justice case. A Sessions firing with corrupt intent to frustrate the Russia investigation would be another tile in the mosaic of misconduct that began with demanding loyalty from former FBI Director James Comey (the same loyalty Pruitt has so abundantly evinced) and culminated in Comey’s firing. Richard Nixon’s Saturday night firing frenzy did not ultimately save him, and Trump could well be hastening that same fate for himself.
The views expressed are the authors’ own and not necessarily those of the Brennan Center for Justice.