Sessions do not resign if you care about rule of law

Opinion Wednesday 26/July/2017 15:41 PM
By: Times News Service
Sessions do not resign if you care about rule of law

US Attorney General Jeff Sessions must wake up every morning wondering what new presidential condemnation the day will bring.
Last week was the New York Times interview in which President Trump said he wouldn’t have appointed Sessions - Trump’s first and for a long time only supporter in the U.S. Senate - had he known Sessions would step aside from the Justice Department’s investigation of possible collusion between the Trump campaign and Russia during the 2016 presidential election.
On Monday morning, the president asked via Twitter why his "beleaguered AG” was not "looking into Crooked Hillarys crimes & Russia relations.”
On Tuesday, President Trump was even more critical, tweeting, "Attorney General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes.”
Trump’s new communications head, Anthony Scaramucci, told radio host Hugh Hewitt that it’s fair to read the president’s tweets as a signal that Trump wants Sessions to resign.
Even Sessions’ allies, according to a Reuters report Tuesday afternoon, believe the president is trying to force his AG to quit.
The U.S. Constitution, as you know, does not require the Justice Department to maintain independence from the White House.
Justice is, after all, part of the executive branch, which is headed by the president.
But for the good of the Justice Department - and to uphold the fundamental American idea that we are a nation of laws - the attorney general must remain in office unless and until President Trump removes him.
Neither the White House nor the Justice Department responded to email requests for comment on Trump's tweets and Sessions' fate.
More than a century of political convention, now codified in formal DOJ rules of engagement with the White House, has insulated Justice from presidential interference.
That idea - that prosecutors' actions are not dictated by those in power - is the bedrock of the rule of law in this country.
"We live in a system where no one is supposed to be above the law,” said law professor Stephen Vladeck of the University of Texas.
"The only legal means we have to protect that idea is the independence of the Justice Department.”
Sessions himself stood staunchly for DOJ’s commitment to the rule of law during his Senate confirmation hearing in January.
A longtime federal prosecutor (and Alabama state AG) before he was elected to the Senate in 1997, Sessions assured the Judiciary Committee that no U.S. attorney general should be a mere rubber stamp for the president.
AGs, he said, are ethically obliged to make independent decisions and, if necessary, check presidential overreaching.
The president’s tweets and comments castigating Sessions for recusing himself and urging him to investigate Hillary Clinton undermine public confidence that the Justice Department is untainted by political influence, according to Vladeck, Stanford law professor David Sklansky and George Washington law prof Jonathan Turley. (South Carolina Senator Lindsey Graham said the same thing on Twitter.)
"Trump’s statements are insulting to the traditions and values of the Department,” said Turley, who has endorsed other controversial Trump legal strategies.
"They are deeply troubling for Justice Department rank-and-file lawyers, who view themselves as professionals insulated from political threats.” Sessions has been a highly effective implementer of Trump’s immigration and law enforcement agenda, so it’s impossible, said Texas prof Vladeck, to attribute the president’s pique at the AG to anything but a grievance that Sessions has failed to protect Trump and his allies and family members from Special Counsel Robert Mueller’s widening Russia investigation.
That makes the president’s criticism of his attorney general particularly brazen, said Stanford professor Sklansky, a former federal prosecutor. "Trump isn’t even pretending to care about the rule of law,” he said.
"There’s not even a veneer of caring about political norms.”
The best way for Sessions to prove the Justice Department is not susceptible to the president’s bullying is to stay right where he is.
Sessions did the right thing when he listened to his department’s ethics experts and recused himself from the Russia investigation.
Now it’s up to him to show both his boss - the president - and his staff that he stands by his independent authority.
That’s what prosecutors are supposed to do, said Fordham law professor Bruce Green, another expert in prosecutorial ethics.
"The whole point of being an independent prosecutor is withstanding pressure. The president’s tweets are a form of pressure,” Green said. "Sessions wouldn’t deserve to be the attorney general if he wasn’t capable of acting independently.”
There are practical considerations at stake as well, said Texas professor Vladeck.
If Sessions resigns, the president has more options for replacing him than he would if he fired the attorney general and were bound by the Justice Department’s rules of succession. (Vladeck’s hypothesis assumes Sessions isn’t fired during a Senate recess.)
If Sessions values the office of the attorney general, Vladeck said, his best leverage is not to resign.
Turley, who said he knows and likes the AG, predicted Sessions will, indeed, stay in office to protect the institution from the perception that it’s susceptible to political pressure.
"Sessions has always viewed himself as a prosecutor,” Turley said.
"I think he realises that a resignation will do great damage to the legacy of the Justice Department.”
If the president actually followed through and fired Sessions, he’d face intense political heat. What qualified candidate would be willing to work for a president who fired the previous AG for overtly political reasons?
Would the Senate confirm another Trump choice? Would other Justice Department lawyers continue to serve a president who disdained prosecutorial independence?
Presumably, Trump has advisers warning against firing Sessions. So the onus is on the AG to ignore the president’s barbs as best he can and keep on doing his job.
Whatever you think of Jeff Sessions’ history, policies and Russia disclosures, you’d better hope he doesn’t resign.