Words I never imagined typing: Attorney General Jeff Sessions, please stay.
It’s obvious that President Trump wants you to go. He and his aides have made that blindingly, humiliatingly clear. But it’s also obvious that Trump does not want to do the deed himself.
You may be a dead attorney general walking. Still, don’t make the president’s job any easier by going gently. Don’t enable this cowardly lawlessness. Certainly, you serve at the president’s pleasure, and he has made his displeasure abundantly clear. The source of it is — from my point of view — pretty much the one thing you have done correctly during your tenure at the Justice Department: You recused yourself from overseeing the probe into Russian meddling in the election.
This was the correct call, and not a close one. If anything, it took you too long to get there; your recusal came only after reports about your misleading testimony before the Senate Judiciary Committee about your Russian contacts during the campaign.
Your decision to recuse yourself from the Russia probe was not, as Trump claimed in his petulant New York Times interview, “very unfair to the president” — it was clearly mandated by Justice Department regulations, which provide that “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship” with its subject. The regulations define a political relationship as “a close identification with an elected official . . . arising from service as a principal adviser thereto.”
So staying in your post, as long as you can, notwithstanding the pressure on you to quit and the accompanying embarrassment of sticking around when you are clearly not wanted, would be a win for the rule of law. Let the president try to convince the country — let him try to convince a Senate that would ultimately be called on to confirm a new attorney general — that firing you served the national interest, not his own personal, political and legal needs. Don’t make it easy for him.
No question, Trump can fire you. He can fire Deputy Attorney General Rod J. Rosenstein. Other senior officials, if they maintain a shred of respect for themselves and the Constitution, would probably leave as well. Trump could then fire, or, more precisely, find or install someone willing to fire, special counsel Robert S. Mueller III. He can hand out pardons, perhaps even to himself. That’s all on him, and he would reap the political whirlwind that I trust would follow, notwithstanding the spinelessness among congressional Republicans that appears to be a widespread preexisting condition.
In the meantime, what should you do? A speech on the independence of the Justice Department and the necessity that justice be dispensed without regard to politics sounds awfully timely. Explain the judgment you reached that department regulations and basic considerations of conflict of interest prevented you from remaining in charge of the Russia probe. Defend the decision to name a special counsel and explain that these are the very circumstances that warrant — indeed, demand — a special counsel so that the public has confidence in the outcome of the investigation.
And you might turn to the wisdom of your predecessors to explain the proper, if complex, contours of the relationship between president and attorney general. Griffin Bell, President Jimmy Carter’s attorney general, explained in a 1978 speech that “the president retains the power and the duty to accept or reject the attorney general’s judgments. . . . The course best calculated, however, to inspire public confidence in the faithful execution of the laws is for the president to allow the attorney general freedom from undue influence, in the first instance; to accept the attorney general’s judgment in specific cases; and to remove the attorney general if his judgments seem wrong.”
If the president wants to can you, he should explain in what sense — other than that it threatens his political and legal well-being — your judgments, including to recuse yourself, have been wrong.
Or — brace yourself — you might invoke Eric Holder, President Barack Obama’s first attorney general, outlining how the White House and Justice Department should interact. “The legal judgments of the Department of Justice must be impartial and insulated from political influence,” Holder wrote in a 2009 memo . “It is imperative that the department’s investigatory and prosecutorial powers be exercised free from partisan consideration.”
An unlikely source for you to quote, but advice that every attorney general — and every president — must live by.