Asked about President Donald Trump’s barrage of attacks on Attorney General Jeff Sessions, conservative lawyers and legal experts exhausted the synonyms for the word “crazy.”
“The President clearly has lost his mind,” Richard Epstein, one of the country’s preeminent scholars on classical liberalism and a Trump opponent, told TPM on Tuesday.
“Just plain nuts,” “bizarre,” “really weird” and “pathological” were among the expressions of open disbelief from other Republican and libertarian legal minds about the fact that Trump is on a campaign to publicly malign the head of his own Justice Department and one of his earliest presidential backers.
By now, Trump’s disregard for norms and the ease with which he boots out subordinates deemed insufficiently loyal are well-documented. But these experts say that Trump is moving into uncharted territory that undermines both the independence of the Justice Department and the viability of his own administration.
“It’s the way you deal with a subordinate on a reality show, not in an actually functioning organization,” Jonathan Adler, a Case Western Reserve University Law School professor who has criticized Trump in the past, said of the President’s behavior, adding that it compromises the Justice Department’s ability to “achieve the rest of Trump’s agenda.”
The President has recently lashed out at his attorney general by sending tweets calling Sessions “beleaguered” and “VERY weak” for declining to pursue investigations into his Democratic presidential opponent, Hillary Clinton; by dispatching senior staffers to tell national press outlets that he wants Sessions gone; and by floating possible replacements with his inner circle.
During a Tuesday afternoon chat with the Wall Street Journal, Trump said he was “very disappointed” in Sessions and acknowledged he was “looking at” removing him from office.
Behind Trump’s long-simmering rage is Sessions’ decision to recuse himself from the federal investigation into Russia’s interference in the election and other matters related to the 2016 campaign. Trump believes Robert Mueller’s appointment as special counsel can be traced back to that move, as he told The New York Times last week in an extraordinary interview.
Sessions has said that he plans to continue serving “as long as that is appropriate,” leaving the decision to oust him in Trump’s hands. Why the President is embarking on a public smear campaign instead of wielding his authority to simply fire his attorney general remains unclear.
“There’s a rational theory and there’s a theory that just makes no sense,” Al Latham, a Trump critic who worked on civil rights issues for the Reagan administration, told TPM. “The rational one is that if Sessions quits rather than being fired and then Trump uses that to take steps to fire Mueller by appointing a new Attorney General it looks less like obstruction of justice.”
“Then there’s a theory that simply makes no sense at all,” he continued, “that for whatever reason this is who Trump is, this is how Trump does things, and he has no sense of limits, boundaries or propriety.”
Trump has taken such a norm-shattering step before: firing FBI Director James Comey because he disapproved of Comey’s handling of what he called “the Russia thing.” These efforts to get rid of the individuals with oversight of the federal investigation into Russia’s election meddling make him look suspicious even to those individuals who believe there is nothing behind that probe.
“I continue to think that the Russia stuff is a bunch of mostly hot air, but Trump continues to act like something to hide with his neuroses about the process,” Josh Hammer, a member of the conservative Federalist Society who’s served as a law clerk for Sen. Mike Lee (R-UT), said of the possibility of Sessions’ departure. “For someone who a lot of us continue to think probably has nothing to hide, he sure as hell acts like he does.”
Whether Sessions is dismissed or resigns, the experts agreed that his’ current situation is untenable. If he departed, Session would either be replaced by Deputy Attorney General Rod Rosenstein, who assumed oversight of the Russia probe after Sessions’ recusal and has also taken heat from Trump, or by a new attorney general appointed by Trump who would need Senate approval.
Adler noted that Rosenstein is “less pliable and certainly less loyal to Trump as an individual” than Sessions, and that anyone else who Trump nominated to lead the DOJ would face a grueling confirmation process at the mercy of senators eager to ensure that individual would not do Trump’s bidding.
Epstein noted there would be few candidates willing to replace Sessions after watching him endure prolonged public humiliation. He characterized working directly for Trump as an experience equivalent to putting “your head into a meat grinder” and a threat to “sanity and sobriety.”
The “strongest reason” why Trump wouldn’t fire Sessions, Epstein believes, “is that he can’t find anyone to replace him. He literally can’t find anyone who will do that job.”