Here is the thing…if we game out that scenario, it really muddies up the waters.
Trump fires Sessions and then appoints an “acting-AG” (first problem) who immediately moves to fire Rosenstein and oversee the Mueller investigation himself (second problem and third problem). Possibly even firing Mueller (fourth problem). The Senate, in a fit, finally pushes back and slow walks/out right denies Trump a nomination hearing. So there is no actual AG.
Every action taken by an “acting AG” is immediately suspect and quite possibly illegitimate. But how and by whom does THAT get investigated? Congressional oversight by the Judicial Committee, possibly…but that would take months, and the Mueller investigation would be put on hold.
Even if a Democratically held House (and possibly Senate) moved forward immediately on impeachment, it would be far from the air-tight case that republicans are looking towards for cover. Because the President DOES have the Constitutional authority to fire the AG. Even though its pretty clear he is doing so to obstruct justice, that particular case isn’t as open and shut as they need it to be. I could see for example, Flood suing the House as soon as papers were filed to argue that Congress doesn’t have the authority to impeach a President for taking actions that are clearly his per to Constitution. Regardless of whether or not that wins…it ties things up, muddies that water and plunges us into the biggest Constitutional crisis this country has ever face.
The Federal Vacancies Reform Act specifies that the assistant AG (Rosenstein, in this case) would be acting AG pending confirmation of a new permanent AG.
Trump cannot willy-nilly appoint a replacement for Sessions.
Trump has found himself in a can’t-win situation of his own making—because he crapped in his own mess kit on this one.
Right…which is why I flagged it as the first problem. He is in trouble over that right now with the VA…but he still appointed an acting VA head anyway.
So how long will it take to litigate that the acting AG isn’t actually legitimate? And what happens when he calls Rosenstein in to (their I suppose, instead of his) office and fires him? Does Rosenstein refuse to leave? So then we have a two people claiming to be AG.
And as far as I know, the Federal Vacancies Reform Act doesn’t preclude the President from firing the assistant AG the very next day. Or even the same day.
It creates chaos and buys time. Both things that Trump wants to accomplish.
The real problem though, is firing Sessions (and even worse in the scenario I just outlined) dramatically increases the chances that the Senate will vote to impeach him. And the even bigger problem, which is the fatal flaw in the PR approach to very real legal problems, is that impeachment isn’t even his ultimate problem…conviction after he is out of office is the larger problem.
Re the rawstory article, for Nixon’s conviction he only had to lose 7 of 40 republican senators. For Trump to be convicted ~18 of ~51 republican senators would have to do the right thing, and I think we had at least some better republicans in 1974.
The Constitution doesn’t put much of a limit on what it can impeach a President for. Consider, for example, if Trumpp decided to start giving the Russians performance data on our newest military hardware. He clearly has the Constitutional authority to do so, but Congress also clearly could impeach him for it. The Constitution gives Congress authority beyond the bounds of law enforcement, because the power of the President is such that the law enforcement system is not an adequate check on the abuse of that power.
I am not arguing for or against the merits of such a case…merely bringing up that something like that would almost certainly happen…which just creates chaos and buys time.
And any such scenario, would undoubtedly involve SCOTUS at some point…I believe that is part of the longer term strategy. Would Flood succeed? Its unlikely in the scenario I painted, but not entirely impossible…and simply raising such an argument before SCOTUS would probably push a certain number of republicans off the fence into a “no impeachment” camp.
