California Forum

The question isn’t whether Trump fires Sessions. It’s what happens next.

Attorney General Jeff Sessions waits to speak at the U.S. Attorney's office on Friday, July 21, 2017 in Philadelphia. Trump’s invective about Sessions has suggested an effort to pressure the attorney general into resigning with a possible eye toward replacing him and ending the Justice Department investigation into Russian meddling in the 2016 election. (David Maialetti/Philadelphia Inquirer/TNS)
Attorney General Jeff Sessions waits to speak at the U.S. Attorney's office on Friday, July 21, 2017 in Philadelphia. Trump’s invective about Sessions has suggested an effort to pressure the attorney general into resigning with a possible eye toward replacing him and ending the Justice Department investigation into Russian meddling in the 2016 election. (David Maialetti/Philadelphia Inquirer/TNS) TNS

President Donald Trump has done something that I thought impossible: He has made Jeff Sessions into a sympathetic figure. I cannot think of another instance in which a president has so publicly attacked a member of his cabinet.

But it actually diverts attention from the most important questions: Will the president fire special counsel Robert Mueller and if so, then what?

In the last week, Trump repeatedly has sharply criticized Sessions even though Sessions has been everything conservatives could have hoped for in an attorney general. Sessions has mandated that those arrested for federal crimes, including drug offenses, be charged to the maximum. He has publicly defended Trump’s immigration policies and worked aggressively to implement them. He has made clear that no longer will the Justice Department be bringing actions against police departments for having a pattern and practice of violating civil rights.

President Donald Trump has done something that I thought impossible: He has made Jeff Sessions into a sympathetic figure. But that diverts from what’s really at stake.

Apparently, Trump’s ire is a result of Sessions recusing himself from being involved in the investigation of whether federal laws were broken in connection with Russia’s involvement in the 2016 presidential campaign. But Sessions had little choice when it was revealed that he lied during his Senate confirmation hearings.

Sen. Patrick Leahy, a Democratic member of the Judiciary Committee, asked Sessions in a questionnaire if he had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after Election Day.” Sessions’ answer was “no.”

During the confirmation hearings before the Senate Judiciary Committee, Sen. Al Franken asked Sessions what he would do if he learned of evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the 2016 campaign. Sessions replied, “I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign, and I did not have communications with the Russians.”

But after his confirmation hearings, it was revealed that Sessions had at least two conversations with the Russian ambassador to the United States in July and September 2016. Sessions knew that he was a potential target for the investigation and therefore had to recuse himself.

The president clearly has the legal authority to fire Jeff Sessions, or for that matter any member of his Cabinet. But whether Sessions stays or goes is incidental to the much more important question: Will the president fire Mueller? It is Mueller, not Sessions, who is investigating whether Trump and top campaign officials broke the law.

Trump cannot personally fire Mueller. Under the special counsel regulations, Mueller may be “disciplined or removed from office only by the personal action of the attorney general.” Since Sessions has recused himself, only Deputy Attorney General Ron Rosenstein can fire Mueller.

If Rosenstein refuses, Trump can fire Rosenstein and put someone in the position who will fire Mueller. This is exactly what happened in the Saturday Night Massacre in October 1973, when President Richard Nixon ordered the firing of Special Prosecutor Archibald Cox and the attorney general and deputy attorney general resigned rather than carry out this order.

There is no doubt that Trump would like to have Mueller fired and to end the criminal probe. The president has called the investigation a “witch hunt” and accused Mueller and members of his staff of being biased.

It likely is a political calculation: On the one hand, Trump’s ordering Mueller fired would trigger outrage, including among some Republicans. But the president also knows that it is unlikely that the Republican-controlled House of Representatives will vote to impeach him and likely his core base of support will stick with him no matter what.

The stakes in all of this are enormous. The very essence of the rule of law is that no one, not even the president, is above the law. The issues surrounding Sessions and Trump thus raise the profound question: Will the rule of law survive the Trump presidency?

Erwin Chemerinsky is dean of the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

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