Donald Trump’s weirdly passive-aggressive feud with Jeff Sessions has prompted the question of what happens next. Assuming that the Attorney General resigns or Trump finally musters up the courage to fire him, the Senate would have to confirm Sessions’ replacement, touching off a confirmation fight that would make Sessions’ hearings a few months ago look like high tea. Or would they? The Washington Post reported last night that Trump had conferred with his team to explore the possibility of using a recess appointment to get around the Senate, at least for the next year and a half:
President Trump has discussed with confidants and advisers in recent days the possibility of installing a new attorney general through a recess appointment if Jeff Sessions leaves the job, but he has been warned not to move to push him out because of the political and legal ramifications, according to people briefed on the conversations.
Still raging over Sessions’s recusal from the Justice Department’s escalating Russia investigation, Trump has been talking privately about how he might replace Sessions and possibly sidestep Senate oversight, four people familiar with the issue said.
The question may be moot after Sessions made it clear that he’s not resigning:
Two of those people, however, described Trump as musing about the idea rather than outlining a plan of action, and a senior White House official said no action is imminent. Several people familiar with the discussions said that Trump’s fury peaked over the weekend and that he and Sessions now seem to be heading toward an uneasy detente.
Let’s just say for the sake of argument that the detente never forms and Trump continues to pressure his Trumpiest Cabinet member to hit the bricks, or mirabile dictu, summons up the cojones to stop whining and say, “You’re fired.” How easy would it be to use a recess appointment to replace Sessions with someone more compliant to Trump’s whims? It used to be a lot easier before the Supreme Court ruled in NLRB v Canning three years ago, a case that the Right cheered for its halt to Barack Obama’s attempts to shove through favors to unions.
Prior to Canning, presidents had increasingly used any break in Congress to justify a recess appointment. Obama had tried to use a slack period without any adjournment in the Senate at all to appoint members to the labor board, which then promptly began issuing regulations that rewarded unions at the expense of businesses owners, which sued to have the regulations ruled invalid on the basis of illegal appointments. The Supreme Court agreed unanimously, and ruled that recess appointments could only be made while Congress is in formal recess or had not met for an extended period of time. The majority defined that as something longer than nine days, at which the late Justice Antonin Scalia scoffed in his concurrence, arguing that only formal recesses should count.
However, ten or more days appears to be the Canning standard, absent any further Supreme Court clarification. The August recess is coming, which usually last five weeks but has been shortened to three this year by Mitch McConnell. Will that work? Only if McConnell doesn’t allow for pro forma sessions, and that looks like a very slim possibility:
Replacing Sessions would be difficult, and the idea of Trump making a recess appointment during the planned four-week break in August is foolhardy. Democrats can indefinitely stall a resolution to fully adjourn the Senate, having already forced minute-long periods during even shorter breaks to prevent Trump from having the authority to make temporary appointments while the Senate is away.
Democrats may have vehemently opposed Sessions’s nomination, but they have no intention of allowing Trump to fire him and name a new attorney general with a recess appointment, and frankly, Republicans do not seem to want to give Trump that power either. …
Senate Majority Leader Mitch McConnell (R-Ky.) made clear in a brief interview Wednesday that his backing of Sessions has gone up the chain of command. Asked if he told Trump of his support, McConnell smiled.
“I’ve conveyed that to the public and to others,” he said.
In other words, there won’t be a recess in which to make the appointment. If Trump fires Sessions or Sessions quits, he’ll be forced to appoint someone to replace him. He could name an acting AG for at least a few months, but that has to be “an officer or employee” already in the DoJ. How many Trump appointees to the DoJ have cleared confirmation — or have even been made yet? Not many, and it seems doubtful that the US Attorneys still in position at this point will want to fire Robert Mueller. Rod Rosenstein certainly won’t.
In other words, Trump’s best bet is that “uneasy detente” with his most vocal supporter. Or better yet, to shut up entirely about Sessions, Mueller, and the Russia probe.