Who's in charge of the Justice Department if Sessions goes?
Posted July 26
For three days in a row, President Donald Trump has tweeted out his grievances against Attorney General Jeff Sessions.
Sources tell CNN Sessions has no plans to resign and that if the President wants him out, Trump will have to fire him.
In the event Trump escalates his frustrations beyond Twitter and fires him, here's what could happen next:
1. Who is immediately in charge?
If Sessions is fired, then Deputy Attorney General Rod Rosenstein, the current No. 2 at the Justice Department, would automatically take his place -- at least, according to statute and the President's own executive order detailing the succession plan from March.
If Sessions and Rosenstein are both fired (or quit), then in that case, Associate Attorney General Rachel Brand, would elevate to acting attorney general.
And moving even further down the line -- if Sessions, Rosenstein and Brand are all gone, then Dana Boente, the current US attorney for the Eastern District of Virginia and acting assistant attorney general for the national security division, would be the next person tapped to serve as attorney general.
2. Can Trump pick someone else entirely?
Yes -- the President doesn't have to follow the usual course, but this is where things could get tricky.
Under the Federal Vacancies Act, Trump can pick anyone who holds a Senate-confirmed position to serve as acting attorney general (subject to certain time limitations) -- but the person he selects as acting cannot then be named as the permanent successor.
By its terms, the Federal Vacancies Act applies whenever a Senate-confirmed officer in an executive agency dies, resigns or is "is otherwise unable to perform the functions and duties of the office." But it's an open question as to what happens if the officeholder is instead fired by the President.
3. What about a recess appointment?
Another option is for Trump to announce a replacement for Sessions during the next Senate recess -- a so-called "recess appointment" who could then serve until the end of the next Congress.
Trump hasn't hinted at this possibility, but Senate Democrats would almost certainly try to block it.
"All Americans should be wondering: Why is the President publicly, publicly demeaning and humiliating such a close friend and supporter, a member of his own Cabinet?" Senate Minority Leader Chuck Schumer said on the Senate floor Tuesday. "They should wonder if the President is trying to pry open the office of attorney general to appoint someone during the August recess who will fire Special Counsel Mueller and shut down the Russia investigation."
"Let me say, if such a situation arises, Democrats would use every tool in our toolbox to stymie such a recess appointment," he added.
No. 2 Senate Republican John Cornyn told CNN's Manu Raju on Wednesday that such a recess appointment would be a "mistake."
"I think it would be incredibly disruptive and make it more difficult for the President to accomplish his agenda," Cornyn added.
While Republicans control the Senate now, the only way they can formally adjourn (which would set up a period when recess appointments are available) is to pass an adjournment resolution. However, Democrats can filibuster that resolution, which they would do to prevent Trump from making a recess appointment.
4. What happens to Mueller's investigation if Sessions is out?
Speaking of Mueller -- his Russia probe is currently under the supervision of Rosenstein (because Sessions recused himself from all things related to the presidential campaigns).
Indeed, the recusal is the primary stated reason Trump has unleashed a fury on his attorney general.
For the time being, only Rosenstein currently has the power to remove Mueller for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of (Justice) Departmental policies" under the special counsel regulations.
But if Sessions is fired, and his replacement doesn't have the same conflict overseeing the investigation, then Rosenstein would no longer be in charge, and Trump's new attorney general could potentially fire Mueller.