How Trump Might Replace Sessions with Pruitt as Attorney General

Gabriel Sherman of Vanity Fair reports of “two Republicans in regular contact with the White House” who say that President Trump “has discussed a plan to fire Attorney General Jeff Sessions” and to replace him with EPA Administrator Scott Pruitt.  The piece originally reported that Pruitt would not have to be confirmed by the Senate; as amended, it now says that “as an agency head and former state attorney general, Pruitt would presumably have a good shot at passing a Senate confirmation hearing.”

Actually, both are possibilities: a Sessions-for-Pruitt switch could occur either with or without Senate confirmation.  [UPDATE:  Of course such rumors should also be viewed with some skepticism, and not only because the President’s notorious volatility:  Michael Shear and Maggie Haberman report that “[s]ome White House officials believe that Scott Pruitt, an ambitious lawyer who is the head of the Environmental Protection Agency, is behind rumors that he is in line to replace Mr. Sessions.”]

The former possibility is straightforward:  Trump could remove Sessions and appoint Pruitt to be AG.  Until the Senate confirms Pruitt, he would continue to serve as EPA Administrator and, by virtue of the DOJ Succession statute (see below), Deputy AG Rod Rosenstein would serve as Acting AG.  Once the Senate confirmed Pruitt, Rosenstein would revert to serving only as Deputy AG, and Trump presumably would appoint someone else to be acting or permanent EPA Administrator.

Alternatively, Trump might use the Vacancies Reform Act of 1998 to appoint Pruitt to serve as the Acting Attorney General as soon as Sessions is removed, in which case Pruitt would serve both as AG and as EPA Administrator until the Senate confirms Trump’s AG nominee–which would have to be someone other than Pruitt–assuming Trump makes such a nomination within 210 days of removing Sessions.

Is the second alternative — appointing Pruitt as Acting AG for a long period, without any Senate confirmation — permissible?  As Steve wrote here, that depends on two issues of law, each of which DOJ appears to have already decided in support of the President’s authority.

First, does the Vacancies Reform Act procedure apply when the vacancy is created by the President’s own removal of the sitting officer?  The VRA itself provides that it applies whenever the relevant officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” and further specifies that “the expiration of a term of office is an inability to perform the functions and duties of such office.”  It does not expressly mention a removal from office.  OLC, however, has at least tentatively concluded (see Q3) that a removal triggers the VRA, citing a passing remark by Senator Fred Thompson on the floor of the Senate on October 21, 1998.  Thompson asserted that the “otherwise unable to perform the functions and duties” language was chosen to cover that and other situations, in contrast to the more limiting language of the pre-1998 statute.  I am not aware of any other relevant legislative history–nor of any cases in the past 20 years involving the use of the VRA to fill positions that are vacant because of presidential removals–but I haven’t researched the question comprehensively.  In any event, if this were seen as a possible stumbling block, it could be overcome if AG Sessions were to formally resign at the President’s request, which would surely suffice for VRA purposes.

Second, does the VRA provide an alternative method for temporarily filling the office of Attorney General, in light of a specific statute Congress earlier enacted, 28 U.S.C. 508, which specifies that “[i]n case of a vacancy in the office of Attorney General, . . . , the Deputy Attorney General may exercise all the duties of that office”?  John Bies has suggested that perhaps Congress intended Section 508 to be mandatory, and to thus supersede the later-enacted VRA processes, but OLC has concluded otherwise–i.e., that the VRA and Section 508 are alternative mechanisms, and that therefore the President can choose to employ either in deciding who shall act as AG and exercise the duties of that office during a vacancy.

If Trump uses either of these mechanisms to replace Sessions with Pruitt, Pruitt would then become the supervisor of Special Counsel Mueller because, unlike Sessions, Pruitt (presumably) is not recused from the Russia Investigation.  I doubt this would result in Mueller’s removal–because, among other reasons, there aren’t legitimate grounds for such removal under the terms that Rosenstein and Mueller agreed upon (those specified in the DOJ Special Counsel regulations); because there are compelling reasons for the AG not to renege on that deal by in effect “withdrawing” the appointment; and because removing Mueller might well backfire on Trump politically while at the same time not ending the robust and thorough investigation, which would revert to being led by the FBI Director, as it was before Mueller was appointed.

What is much more likely, however, is that Pruitt might try to limit Mueller’s actions in ways that Rosenstein would not–including, especially, with respect to the scope and content of any report that Mueller might provide to Congress and/or the public at the conclusion of his investigation.  (There also would be at least some chance a new AG might resist certain of Mueller’s prosecutorial decisions, but for various reasons I think it’s unlikely he would preclude Mueller from presenting particular charges to a grand jury.)

(Chip Somodevilla/Getty Images)

 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).