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Trump actually has a lot of options to replace Jeff Sessions

President Trump resumed his attacks on Attorney General Jeff Sessions Wednesday, taunting him on Twitter — again — for not pursuing an investigation into Trump’s political nemesis, Hillary Clinton. The latest broadside came as Sessions visited the White House for a “routine meeting,” which pointedly was not a meeting with his boss, President Trump.

Wednesday’s tweet is the latest in a week full of Trump attacks on Sessions. It all started when Trump told the New York Times that he never should have hired Sessions in the first place. Since then Trump has used Twitter to call Sessions “beleaguered” and “weak.”


At a press conference Tuesday, Trump responded to a question about potentially firing Sessions by saying, “I’m very disappointed with the attorney general, but we will see what happens. Time will tell. Time will tell.”

Sessions’ aids reportedly made it clear to White House staff that he will not resign.

“I plan to continue to do so as long as that is appropriate,” Sessions said at a press conference last Thursday. “I have the honor of serving as attorney general. It’s something that goes beyond any thought that I would have ever had for myself. We love this job. We love this department.”

Republicans in Congress have rallied behind Sessions. Senator Lindsey Graham called the President’s tweets “inappropriate” saying, “Jeff Sessions is one of the most decent people I’ve ever met.” Others, including Senator Richard Shelby from Alabama, joined in.

Despite support for Sessions, Trump’s power to fire the Attorney General is undisputed, and there are a lot of ways he can go about replacing him, but not without paying a political price.

If Sessions gets sacked or is forced to resign, Republicans in Congress could turn against Trump by refusing to get on board with his agenda wish list, like tax reform, or passing laws that limit his power, like the House did regarding Russia sanctions earlier this week.

After that, there are three potential future scenarios for the the Attorney General position, according to Just Security co-editor Steve Vladeck.


Option 1: Let Deputy Attorney General Rod Rosenstein take over

The clearest and least controversial way forward would be sticking to Trump’s March executive order that outlines a succession plan for the Department of Justice. It says that Deputy Attorney General Rod Rosenstein takes over if Attorney General Sessions is fired or resigns.

What would happen?

The problem with this scenario is that Trump isn’t a big Rosenstein fan, and he doesn’t approve of Robert Mueller, the man Rosenstein appointed to head the DOJ’s investigation into the Trump campaign’s ties to Russia.

Option 2: Appoint someone else who is already Senate-confirmed

A way to avoid putting Rosenstein at the helm is to use the Vacancies Reform Act of 1998, which allows the president to appoint anyone who has already been confirmed by the Senate to act as Attorney General for 210 days, or maybe more.

What would happen?

Trump could choose from anyone that has been Senate-confirmed — he’s not limited to choosing from Department of Justice appointees. That could mean Attorney General Scott Pruitt or Elaine Chao or anyone else in the government who’s been confirmed by the Senate. But whoever he chooses could not then fill the position permanently later on.

Option 3: Appoint someone — anyone — during a recess

The third and most theatrical scenario would be to try to fill the position using a recess appointment. People the president appoints while the Senate is on recess for 10 or more days are not subject to Senate approval, so Trump could appoint whoever he wants this way. He could do this even if he fires Sessions before the recess begins.

What would happen?

But the problem with recess appointments is that the Democrats could prevent the Senate from going into recess in the first place with a filibuster. Senate Minority Leader Chuck Schumer pledged Tuesday to do just that.

To force a recess, the Republicans could then “nuke” the filibuster rules the same way they did for Supreme Court appointments in April, by changing the Senate rules entirely with 51 votes.

Senator Al Franken warned Tuesday, “That would create a constitutional crisis.”

Any of these three different scenarios is possible as Attorney General Sessions’ fate remains up in the air and the traditional August recess approaches. Senate Majority Leader Mitch McConnell has said the Senate will stay in session until August 7, but that could change as the health care debate rages on.