White House

If Sessions leaves, a new DOJ sheriff could rein in or ax Mueller

Gregg Jarrett

It is unconventional, if not unprecedented, for a sitting president to publicly disparage his attorney general after a mere five months on the job. 

Nevertheless, is President Trump justified in his displeasure and frustration with Jeff Sessions?  Let’s examine the facts. 

"If he was going to recuse himself, he should have told me prior to taking office, and I would have picked somebody else,” Trump said at a Rose Garden news conference.  “It’s a bad thing not just for the president, but also for the presidency.  I think it’s unfair to the presidency.”   

Trump’s point is this: Sessions concealed his intent to recuse himself from the federal investigation into possible connections between the Trump campaign and Russia.  In so doing, the attorney general effectively “sandbagged” the president. 

Perhaps the former senator from Alabama was so desperate for the job, he did not care that his recusal might undermine the presidency of the man who nominated him to be the nation’s chief law enforcement officer.  Or maybe Sessions was naïve in convincing himself that failing to disclose such a material matter was somehow inconsequential. It was not.      

By his own admission during a Senate Intelligence Committee hearing in June, Sessions began setting his recusal in motion within hours after being sworn-in as attorney general on Feb. 9.  On his first full day as AG, Sessions immediately met with Justice Department officials to discuss stepping aside from the investigation. A month later, on March 2, he made his recusal official.

Clearly, Sessions was considering disqualifying himself well before he took the oath of office. It was not something that simply dawned on him the moment he raised his right hand in the Oval Office ceremony. And there stood the president, expecting his new attorney general to serve the nation fully and honestly. In retrospect, it was a significant and deliberate deception by Sessions.

On this basis alone, President Trump would be justified in firing him. In the alternative, Sessions could choose to resign. Either way, it is apparent from Trump’s recent remarks that he is more than “disappointed” in his attorney general. He has lost confidence in Sessions.

One can legitimately debate whether Sessions was required to recuse himself. Under the law (28 CFR 45.2), there is sufficient latitude and discretion for Sessions to have remained involved in the Russia investigation. The legal standard is a subjective one.  One person’s interpretation of the language is invariably different than another person’s judgment.

Regardless, President Trump was entitled to know the truth. He deserved an attorney general who, at the outset, was forthright about his intentions, not someone who was hiding his plan to step aside from a major investigation that would surely impact the new administration. 

But for Sessions’ deceit, it is unlikely that a special counsel would have been appointed. Instead, Sessions’ replacement in the Russia case, Acting Attorney General Rod Rosenstein, took it upon himself to appoint Robert Mueller to preside over the probe… which played neatly into the scheme admittedly devised by fired FBI Director James Comey, who just happens to be Mueller’s close friend and long-time professional ally.

If there was ever a conflict of interest that demanded recusal under the special counsel law (28 CFR 600.7), it is Mueller’s relationship to his protégé, Comey. The regulations, codified into law, specifically require Mueller to step down if he has a “personal relationship with any person substantially involved in the investigation or prosecution.”  It then defines personal relationship as a “friendship…normally viewed as likely to induce partiality” (28 CFR 45.2). The current conflict is so conspicuous, there may as well be a photo of Mueller and Comey accompanying the rule. 

Yet Mueller continues to ignore the law. And Rosenstein has shown no inclination toward limiting the special counsel’s investigation which seems to have morphed into matters well beyond the scope of his original directive. 

Rosenstein, himself, is also hopelessly conflicted because he authored the memo that led to Comey’s firing which is reportedly being examined by Mueller as possible obstruction of justice. As Mueller’s boss, it is inconceivable that Rosenstein could serve in the capacity of both prosecutor and witness without turning the entire case into a charade of conflicts. President Trump expressed it more succinctly when he tweeted, “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!”    

However, all this could change if Sessions were to leave the Justice Department. President Trump could then name a new acting attorney general who would not only replace Sessions, but assume oversight over Mueller’s investigation, pushing aside Rosenstein. 

Who might the president choose? Harvard Law professor Laurence Tribe predicts that Associate Attorney General Rachel Brand would get the job, although her name has been bandied about in the media for more than a month. Already confirmed by the Senate as third in command, the respected lawyer could take over the helm at Justice and properly confine Mueller’s probe to its expressed directive: “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”.  If he strays, she could rein him in.   

Under the special counsel law, Mueller would be required to consult directly with Brand and explain the course of his investigation. If any of his actions are determined by Brand to be “so inappropriate or unwarranted that it should not be pursued,” she could stop him.  If he persists, she would then be authorized to discipline or remove Mueller for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies” (28 CFR 600.7-d).    

Or, Brand could simply decide that Mueller’s existing conflict of interest, as noted above, is now so pronounced that it compromises the integrity of the overall investigation. For this reason alone, she could dismiss the special counsel and select someone else who is fair, impartial and devoid of the kind of bias that has rendered Mueller and his investigation inherently suspect. 

For now, President Trump seems to be escalating the pressure on Jeff Sessions to resign.  At the same time, the president is mounting a public case that Robert Mueller is the wrong person to serve as special counsel. 

Both arguments have merit. If they prevail, it could dramatically alter the president’s fortunes.                

Gregg Jarrett is a Fox News Anchor and former defense attorney.