The Memo: Justice Department veterans reeling over Sessions drama

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Former Department of Justice (DOJ) officials are voicing one overarching concern as the battle between President Trump and Attorney General Jeff Sessions rages on: What if Trump fires Sessions and gets away with it?

DOJ veterans worry that Trump is contemplating an unprecedented power grab and question whether Congress will stand up to him — by refusing to confirm a replacement if Sessions is ousted, for example.

{mosads}“There is a whole constitutional common law — the rules of the road — and it is vital,” said Harry Litman, a former U.S. attorney and deputy assistant attorney general. “It is based on examples of what people can and can’t do, but Trump shows every indication of disregarding it with impunity — and so far he has been able to. It’s kind of terrifying.” 

Other former DOJ officials are also looking toward Republicans in Congress.

Asked if the removal of Sessions would provoke a constitutional crisis, Peter Zeidenberg, who spent 17 years as a DOJ prosecutor, replied, “You would hope so.”

“That is the best-case scenario. The worst-case scenario is that Republicans in Congress shrug their shoulders. You would, in effect, have the president being permitted by Congress to quash an investigation simply because he doesn’t like it. I can’t imagine anything more serious than that.”

Trump amplified his drumbeat of criticism against Sessions on Wednesday. This time, he criticized the attorney general for not replacing the acting director of the FBI, Andrew McCabe, earlier this year.

McCabe’s wife received funds for a 2015 Virginia state Senate bid from a political action committee affiliated with Virginia Gov. Terry McAuliffe (D), who has been a friend of Bill and Hillary Clinton for many years.

“Problem is that the acting head of the FBI & the person in charge of the Hillary investigation, Andrew McCabe, got $700,000 from H for wife!” Trump tweeted.

The president began his assault on Sessions in a New York Times interview last week, in which he said he would not have chosen the former Alabama senator to be attorney general in the first place if he had known Sessions would recuse himself from Russia-related investigations.

On Tuesday, Trump repeated that he was “disappointed” in Sessions.

“He should not have recused himself almost immediately after he took office,” Trump said during a news conference in the White House Rose Garden with the prime minister of Lebanon, Saad Hariri. “And if he was going to recuse himself, he should have told me prior to taking office and I would have, quite simply, picked somebody else.”

In Trump’s view, Sessions’s recusal ultimately led to the appointment of former FBI director Robert Mueller as a special counsel to look into allegations of collusion between Russia and Trump’s 2016 presidential campaign.

Recent media reports have indicated that Mueller is looking into the president’s financial dealings as well and may be investigating him for obstruction of justice.

The president’s critics fear he is trying to get rid of Sessions to ultimately end the Mueller probe.

Speculation is rife in political circles that Trump could fire Sessions at any moment. If that happened, “he would have fired one FBI director and two attorneys general in six months,” said Matthew Miller, who served as spokesman for former President Barack Obama’s attorney general, Eric Holder. Miller was alluding to the firing of James Comey in May and acting Attorney General Sally Yates in late January.

Incoming White House communications director Anthony Scaramucci stated in interviews Wednesday morning on CNN and Fox News that he did not know whether Trump would fire Sessions or if he wants a new attorney general.

Meanwhile, Trump allies are echoing his attacks on Mueller — and the DOJ more generally.

In an interview with NPR on Wednesday, former Speaker Newt Gingrich (R-Ga.), a Trump confidant, said Mueller was “engaged in a fishing expedition.”

Gingrich asserted that Mueller was hiring “paid killers” for his team and claimed that anyone who denies the DOJ has a bias against Trump is “living in a fantasyland.”

But Justin Levitt, a law professor at Loyola Law School in Los Angeles and a former deputy assistant attorney general in the DOJ’s civil rights division, struck back at that line of attack.

“To suggest lawyers at the Department of Justice behave one way or another based on how they might vote every two or four years is a fundamental misunderstanding of what lawyers do and what civil servants do,” Levitt told The Hill. “I would be just as livid about that if Newt decided it was OK because a certain proportion of them were Republicans.”

Levitt argued that beyond the specifics of the Sessions matter, Trump’s attitude toward the DOJ is “deeply, deeply disturbing.” 

“He treats the Justice Department not only as an extension of the White House counsel but of his own personal counsel,” he said. “He thinks they are his lawyers — and that is emphatically not their job.”

Some Republicans have come out in support of Sessions this week. At least seven GOP senators — John Cornyn (Texas), Lindsey Graham (S.C.), Mike Lee (Utah), Rob Portman (Ohio), Richard Shelby (Ala.), Thom Tillis (N.C.) and Pat Toomey (Pa.) — have expressed some form of backing for him.

That reaction helped some of the more overtly liberal former DOJ lawyers see a silver lining in the current crisis.

“What I want is for [Trump] to finally do something to get Republicans to care more about country than party. If the removal of Jeff Sessions is that thing, he couldn’t do it soon enough,” said Roy L. Austin Jr., a former deputy assistant attorney general in the civil rights division.

But all seem to agree, as the president continues sniping at Sessions, that the stakes could hardly be higher for Republicans in Congress.

“Republicans are now the most important link in the whole constitutional system,” Litman said. “Absent some kind of steel in the Republican spine, I think there is great damage to be done to the whole constitutional framework.”

The Memo is a reported column by Niall Stanage, primarily focused on Donald Trump’s presidency.

Tags Barack Obama Donald Trump Eric Holder Hillary Clinton Jeff Sessions John Cornyn Lindsey Graham Mike Lee Rob Portman Thom Tillis

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