Below is my column in USA Today on the possibility of a “Doomsday scenario” where President Donald Trump first fired (or forces the resignation) of Jeff Sessions and then moves to fire Special Counsel Robert Mueller. That scenario was reinforced yesterday with reports that Trump has discussed firing Sessions and giving a recess appointment to his successor — the very scenario laid out earlier in this column. In addition, Trump blasted Sessions again yesterday — this time criticizing him for not replacing Acting FBI Director Andrew McCabe, whose wife ran for office in Virginia in 2015 and received large contributions from the Democratic Party.
Trump’s unrelenting criticism of Sessions is occurring at the same time as new leaks about his discussing not just a replacement but a recess appointment — something the Democrats have vowed to prevent. The question is whether some Republicans might join in that effort to prevent the type of Doomsday scenario laid out in this earlier column.
Many in Washington are baffled by President Trump’s continuing attacks on Attorney General Jeff Sessions, most recently at Tuesday’s news conference with Lebanese Prime Minister Saad Hariri.
Trump is clearly angry that Sessions recused himself from the investigation of Russia’s involvement in the 2016 election, but what does the president hope to gain in a one-sided verbal war with one of his most loyal supporters? Does the president have a strategy or is he merely venting?
The hope among Republicans is that this tweet storm too shall pass. But there is another possibility, that the president is intentionally pushing his administration past the fail-safe point to engineer the termination of the special counsel investigation by first removing the attorney general.
The costs would be both immediate and potentially prohibitive, but the idea that Trump would act is not so far-fetched. Why would he do it? The reason should chill every Republican on Capitol Hill to the bone. Trump said that “time will tell” in how he deals with Sessions. His failure to answer direct questions on Sessions’ future is telling enough.
First, it is important to state the obvious. Sessions, Trump’s most loyal supporter in the Senate during the presidential campaign, acted entirely appropriately in recusing himself from the Russian investigation, despite Trump’s recent statement that he would never have appointed him if he knew Sessions would recuse himself.
By insisting that Sessions should not have recused, Trump is saying Sessions should have taken an unethical path, ignoring the views of the Justice Department ethics lawyers he consulted. Similarly, Trump’s suggestion that Sessions should have opened up investigations into the president’s 2016 general election opponent and the Democrats contradicts long-standing rules against political influence over Justice Department investigations.
The renewed attacks on Sessions as “weak” and “beleaguered” and disappointing has convinced many that Trump is trying to get Sessions to voluntarily resign. The conspicuous absence of Sessions from key events, such as the Boy Scout Jamboree attended by other Eagle Scouts in the Cabinet, has fueled the speculation that the attorney general is being sent a clear signal that he is persona non grata.
I believe that Sessions would do a disservice to his department by resigning, but he could conclude that the loss of trust and a working relationship with the president makes his continuation as attorney general dangerous for the country.
That would set the scene for a doomsday scenario.
Here is how it would work. If Trump wants to stop the expansion or even the continuation of the special counsel investigation, his problem is not really with the attorney general. When Sessions recused himself, his deputy, Rod Rosenstein, gained authority over the Russia investigation and appointed Bob Mueller. If ordered to fire the special counsel he appointed, the assumption is that Rosenstein would either have to be fired or resign (as did his predecessors in the Nixon administration when ordered to fire Archibald Cox). Presumably, Rosenstein’s subordinates would then follow suit (as was the case in Nixon). It would continue until Trump could find or appoint a new Robert Bork (who as solicitor general finally fired Cox).
Removing Sessions is the simple alternative to that drawn-out and messy prospect. If Sessions leaves, whether he is fired or forced out by Trump’s continuing abuse, the president could appoint an attorney general with no ties to the campaign and no objective reason to recuse himself or herself. He could even make the appointment during a recess and avoid the Senate confirmation process to allow the immediate exercise of authority as attorney general.
Democrats are reportedly moving to block a recess with a filibuster if needed, but Trump has been (thus far unsuccessfully) calling for the Senate to rewrite its rules to restrict the filibuster. If Trump and Senate Republican supporters were successful in changing the rules, there would be no confirmation vote — allowing GOP senators to publicly express outrage but not have to take any action.
The recess appointee could then take over control of the special counsel investigation and either limit its scope or terminate Mueller. Rosenstein would likely resign in protest, but that would merely allow Trump another key recess appointment.
The immediate response to such an action would be calls for the reinstatement of the Independent Counsel Act, but (with both houses in Republican control) Trump may think that he has enough votes to block such a counter move. If so, the only Russia probes remaining would be congressional investigations led by Republicans. Trump could then use the Justice Department to open up investigations of the Clintons and Democrats in their dealings with Russians, Ukrainians and others.
Of course, there would also be immediate calls for the drafting of articles of impeachment, but Trump is a classic margin player in both business and politics. An impeachment effort requires a two-thirds supermajority in the Senate — 67 votes — to remove Trump from office. Math is on his side.
The common assumption in Washington is that the costs of such a strategy would be simply too high. Trump would plummet even further in the polls, and skittish Republicans could easily bolt on Capitol Hill.
But Trump won the 2016 election by constantly defying such assumptions, and those plummeting polls are just what may give him the opportunity to do it again.
Trump could be coming close to developing Christie Syndrome. New Jersey Gov. Chris Christie reached record lows in the polls recently at around 15% approval. That is getting precariously close to the margin of error for polling. If he goes any lower, pollsters could just start listing the names of his supporters.
Backed into that corner, Christie responded with the ultimate Italian salute from a beach in Jersey. After the state barred citizens from beaches due to the budget impasse, Christie basked in the sun with his family and then dismissed the anger of his constituents. It became so bad that when Christie recently caught a ball (left handed) at a Mets game and gave the ball to an adorable kid, he was actually booed. Booed. Most politicians have nightmares of such a situation but Christie shows that it can actually be liberating. It is almost impossible to go below 10% because a certain number of polled citizens either love you for being an entertaining car wreck or just mistake you for their favorite singer Meat Loaf.
Trump could reach a Christie stage and conclude that with three years to recover, he has little to lose but much to gain in shutting down the special counsel investigation. Of course, the problem is that the move could hand not one but two houses to the Democrats after the midterm — with a serious threat of impeachment and removal. Yet, that would be then and this is now. Trump might believe that his core of 35%-40% supporters would stick with him, and that’s good enough to keep the GOP in line and even secure the nomination for a second term.
So there is the doomsday scenario based on mutually assured destruction. All doomsday scenarios are based on the belief that despite the horrific losses, you will be one most likely to crawl out of the radioactive wreckage. In other words, the last guy standing wins.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley