- The Washington Times - Wednesday, July 26, 2017

President Trump has been merciless in recent attacks on Attorney General Jeff Sessions, citing the Justice Department chief’s recusal from oversight of the investigation into Russian interference in last year’s election as a source of disappointment.

But if the president’s goal is to derail the probe, analysts say removing Mr. Sessions isn’t a foolproof way to ensure that happens.

If Mr. Sessions goes, his deputy Rod Rosenstein would traditionally be next in line to take over as acting attorney general.

Mr. Rosenstein already oversees Special Counsel Robert Mueller’s investigation because of Mr. Sessions’ recusal, and it’s unlikely much would change if he took over in an acting role.

Mr. Trump could opt to select someone other than the deputy attorney general to lead the Justice Department on an interim basis, invoking his authority under the federal Vacancies Reform Act.

“President Trump could name someone much more sympathetic to his views to serve as acting attorney general — someone who might take a far different view of special counsel Mueller’s investigation, and who might even be inclined to seek to fire Mueller,” Stephen Vladeck, a University of Texas national security law professor, speculated in a blog post on Just Security.

Any person named under the Vacancy Act would have to have already undergone Senate confirmation and would be subject to a 210-day limit in office. But it’s unclear whether the statute could be invoked if the previous officeholder was fired.

A time limit would also apply should Mr. Trump choose to make a recess appointment — the person would be able to remain in office until the end of the next session of Congress in January 2019.

But that could be enough time for a Trump ally to change the scope of the special counsel’s probe.

“That’s long enough they could really scuttle this Russia investigation,” said Barbara McQuade, former U.S. attorney for the Eastern District of Michigan and a law professor at University of Michigan Law School.

Mr. Trump said last week that if he’d known Mr. Sessions would recuse himself from overseeing the Russia investigation the president would have picked someone else.

Ms. McQuade said the implication is that Mr. Trump wants an attorney general who will listen to him rather than a legal conclusion supported by those in the Justice Department.

“He’s basically mad at Sessions for following the rules, which suggests that he wants someone who doesn’t follow the rules,” she said.

White House press secretary Sarah Huckabee Sanders said Wednesday that the president has not met with Mr. Sessions this week, but gave no indication that the president intends to fire the attorney general.

“You can be disappointed in someone but still want them to continue to do their job and that’s where they are,” she said.

Even if Mr. Sessions is eventually forced out and a new attorney general sought to derail the probe, analysts say the investigation would be difficult to sweep aside.

“Politically, it would be perilous for a new attorney general to come in and shut it down,” Ms. McQuade said.

Mr. Mueller’s current charge authorizes him to investigate any possible coordination between the Russian government and members of Mr. Trump’s campaign as well as any other matters that arise directly from the investigation or any crimes committed with the intent to interfere with the investigation.

The special counsel would likely balk at efforts by a new acting attorney general to narrow the scope of the probe, said Eric M. Freedman, a professor of constitutional law at Hofstra University.

“You have to assume that yes, in theory, the new attorney general under that scenario could write a memo to Mueller saying you are to do A, B, and C,” Mr. Freedman said. “But the probability is that Mueller would resist any effort to curb him beyond what he thinks is appropriate.”

Even if Mr. Mueller were fired, it wouldn’t grind the investigation to an immediate halt, said Philip Allen Lacovara, a former U.S. deputy solicitor general who served as counsel to Watergate special prosecutors Archibald Cox and Leon Jaworski.

When Mr. Cox was fired on President Nixon’s order in 1973, Mr. Lacovara said he and his colleagues on the team kept right on working until Mr. Jaworski was appointed as a replacement.

“Mueller and his people are in place, they are doing what they are doing day by day,” Mr. Lacovara said. “Whether Sessions is there or not doesn’t matter because he’s recused himself. The key is Rosenstein, if he’s still there.”

Any decision to end the investigation could also come back to haunt those involved.

Mr. Trump would eventually have to nominate someone to fill the position on a permanent basis, and members of Congress could press candidates for pledges to restart the Russia probe, Mr. Lacovara said.

Mr. Freedman said Congress helped create the situation by letting an independent counsel law expire. Under that old law, the counsel was appointed by panel of federal judges and couldn’t be disbanded by the president or attorney general.

“If one were vaguely serious about addressing the current problem, they would be gathering bipartisan sponsorship to revive the independent counsel statute and daring President Trump to veto it if he was so inclined,” Mr. Freedman said.

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