Confronting the Emerging Threat to the Mueller Investigation: An Interim AG

For well over a year, we’ve watched Donald Trump’s almost continuous efforts to kill the investigation being conducted into his campaign, his inner circle, his presidency, and himself. Now Trump’s big move against the investigation seems to be coming into focus:

Trump is preparing to fire the recused Attorney General, Jeff Sessions, as the wall of Republican Senators that had protected Sessions is visibly crumbling.

Since Trump’s sole source of dissatisfaction with Sessions is that he recused himself — as Justice Department rules obligated him to do — we can have no doubt whatsoever about Trump’s motives:

Trump wants an Attorney General

• whose loyalty is to Trump, not the rule of law;
• who would presumably take over the supervision of the Mueller investigation from Rod Rosenstein;
• and who therefore would do whatever Trump wants him to do to protect this lawless President from being held accountable for the high crimes and misdemeanors Mueller might bring to light.

(Among the measures an un-recused new AG could take are 1) firing Muller, 2) hamstringing the investigation, and 3) taking Mueller’s report — which Mueller will be required to submit only to the AG — and burying it, unseen by Congress or the American people.)

Every American who cares about the survival of our constitutional order must hope that Trump’s efforts to place himself above the law will fail.

But how is Trump’s coming move to be defeated?

Some commentators have talked about how any new Attorney General could be required, in order to gain Senate confirmation, to pledge not to interfere with the Mueller investigation.

But others are pointing out that Trump can by-pass any need for Senate confirmation by appointing an “Interim” Attorney General. Anyone who has been confirmed by the Senate for any office, it is said, can be chosen by Trump to become acting Attorney General, without the need for anyone’s approval. *

Without the safeguard of a confirmation process, what can be done? Here’s an idea that might have some utility.

Democrats should begin immediately — in both Houses of Congress — to press for a Congressional declaration that

“Whereas the President’s complaint against Sessions has been purely about Sessions refusing to disobey Justice Department guidelines and instead protect the President from a legitimate and important investigation;

“And whereas the conclusion is inescapable that Trump’s purpose in appointing an Interim Attorney General to replace Sessions is to disable that investigation– which constitutes a clear effort to obstruct justice;

“The Congress declares that any such Interim Attorney general will have three choices:

“1)      To recuse him- or herself from the Mueller investigation, as Sessions did.

“2)      To pledge publicly to Congress that the Mueller investigation will not be impeded, and that Mueller’s report will be made available to Congress and the public. Or

“3)      To be impeached for unwillingness to provide assurances, which in these circumstances are clearly required to fulfill the oath taken to “protect and defend” the Constitution of the United States.”

It is, of course, doubtful that enough of this craven bunch of Republicans in Congress would support such a measure to protect the rule of law.

But the Democrats should start now to make a big issue of this – to put pressure on the Republicans and/or to expose the complicity of the Republicans in Trump’s obstruction of justice.

The beating of this drum should begin now –preemptively– for two reasons: to frame the issue in advance, rather than to have to deal with a fait accompli; and to reinforce – as part of the mid-term campaign — the image of the Republicans in the national consciousness as failing to protect the nation.

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* I have heard something, which was not fleshed out, indicating that there may be ambiguity — and therefore a battle in the courts — over whether such an “interim” appointment can take precedence over a law that mandates that, upon the departure of the Attorney General, the Deputy Attorney General — i.e. Rod Rosenstein — would automatically rise to become acting AG until the Senate confirms a replacement. How much this notion can be relied upon to protect against Trump’s assault on the investigation, I don’t know.