Below is my column in USA Today on the sacking of Attorney General Jeff Sessions and the implications for the Trump Administration. The most worrisome thing about the forced resignation is that Trump still does not understand that Sessions not only took the only ethical course in recusing himself, but the best course for the Administration.
Here is the column:
In the Shakespearean drama known as the Trump administration, the Jeff Sessions is the ultimate tragic figure undone by doing the right thing. His epitaph could accurately borrow a line from King Lear: “I am a man more sinned against than sinning.”
Sessions was the first powerful Republican and U.S. Senator to support Donald Trump. However, his greatest service to Trump was the act that Trump never forgave him for: his recusal from the Russian investigation. The fact that Trump still does not seem to appreciate how Sessions helped him is precisely why this resignation is so unnerving. The appointment of Matthew Whitaker as acting attorney general only magnifies those concerns.
When Sessions was nominated, some of us immediately said that he should recuse himself since he played a key role in the campaign. Sessions did not immediately do so but rather waited for a full review of career ethics experts at the Justice Department. That review came to the same conclusion that a recusal was needed to protect the integrity of his department and the investigation.
Trump began crisis by firing Comey
The recusal snowballed in significance after Trump unwisely fired then FBI Director James Comey. I was highly skeptical of the need for a special counsel until Trump fired Comey. Trump insiders have stated that only Jared Kushner supported firing Comey, but Trump still gave the order. Had he stayed quiet and allowed the FBI to complete its investigation, he would have been likely cleared in short order. However, that firing left little question that a special counsel was needed. That had nothing to do with Sessions.
Even then, Trump should have seen the benefit of the recusal. There is still no direct criminal evidence against Trump of obstruction or collusion. By recusing himself, Sessions guaranteed that such a conclusion would be untainted by questions of improper influence. Instead, Trump began his campaign of self-defeating attacks on Sessions, Deputy Attorney General Rod Rosenstein, and Special Counsel Robert Mueller.
Trump clearly wanted Sessions to bring the investigation to a rapid close and to refuse to appoint a special counsel. That would have required Sessions to shut down an investigation that was already pursuing possible criminal charges. That could well have cascaded from a threat of weak prosecution into a strong impeachment.
Despite Trump’s continual abuse of Sessions, the attorney general continued to advance his agenda in every other way. Indeed, Sessions has been one of the most aggressive cabinet members in reshaping the policies of his department to push through Trump’s policies on immigration, criminal justice and a host of other areas.
The lesson not learned from Sessions could still prove lethal for this president. The appointment of Whitaker may well indicate a worrisome failure of comprehension. Whitaker has previously suggested that an acting attorney general could kill Mueller’s investigation without actually firing him. He has also been critical of the investigation.
Whitaker’s appointment could still snatch defeat out of the jaws of victory. Mueller is clearly winding down his investigation. While there are some possible subjects (like Donald Trump Jr. and Trump confidante Roger Stone) who may be facing serious threats, Trump is unlikely to be indicted or even implicated in collusion or obstruction. If Whitaker acts to limit Mueller at this point, it could raise new concerns for obstruction.
Moreover, Whitaker could well receive Mueller’s report and refuse to send the report to Congress or approve new charges. Under the Federal Vacancies Reform Act, Whittaker can serve without Senate confirmation for 210 days. That would mean serving until June 2019 – well beyond the expected date for the submission of the report. Finally, Whitaker could mirror a hardline approach with the new White House counsel in refusing investigatory demands from the new Democratic-controlled House.
The longer Whitaker serves, the more suspicious
Whitaker could use the next seven months to move the Justice Department into a fully bunkered position with regard to the Special Counsel and congressional investigations. He could then hand over the department to a nominee to become the permanent Attorney General. The longer he serves in this position, the more likely he will be viewed as a cynical choice. There is no reason why a new attorney general nominee could not be selected in January and, with a strong Republican majority in the Senate, such a nomination could move swiftly to confirmation. Continuing with an acting attorney general for an artificially long period would add suspicions that Whitaker was selected as a type of one-trick pony.
None of this means that Trump is about to repeat his mistakes from the start of his administration. In his press conference, Trump said that he does not intend to cut short the investigation despite his contempt for it. Moreover, while Rosenstein would have been the natural choice as acting attorney general, Rosenstein’s own serious conflicts of interest (and baffling failure to recuse himself as a witness in the investigation) makes his selection problematic. Finally, Whitaker is likely to allow Mueller to continue and could well defer to him on criminal charges in conformity with prior Department special investigations.
This brings us back to lesson of Sessions. For the president, the lesson was appointing someone who put the ethics rules of justice over the interests of the president. If Whitaker is viewed as the anti-Sessions, that could put him in a very difficult position within weeks. The greatest test for Whitaker could come if Mueller proposes an indictment of someone like Trump Jr. or a report with damaging evidence against President Trump. At such a moment, the problem may not be Whitaker’s inclinations but Trump’s expectations.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley