There is trouble brewing in Washington, DC, as Donald Trump melts down on twitter, lambasting his Lilliputian Attorney General, Jefferson Beauregard Sessions The Third. As Sessions cannot likely withstand this assault on his character and pride in perpetuity, the question being asked is this: How will Trump get an even stoogier stooge situated atop the Department of Justice after Sessions either quits or is fired?
Since the aim here seems to be to get rid of Special Counsel Robert Mueller and his pesky poking around about Team Trump’s ample criminal enterprise — and since any stab at getting rid of Mueller would cause the kind of displacement and turbulence that would make the “Saturday Night Massacre” of yore seem like a tranquil, still pond in comparison — the political appetite for a Senate confirmation fight seems likely to be wanting, to say the least. That makes a Chris Christie or Rudy Giuliani appointment almost unthinkable. In fact, it makes any appointment that relies on the normal Senate-confirmation process almost unthinkable.
So how would Trump install somebody at DOJ who would do his bidding and fire Mueller? (Under existing rules, a president cannot fire a special counsel directly; he has to get the AG — or Acting AG — to do it. And since Sessions has recused himself from all things Russia, he can’t do it; that’s why Trump is so angry with Sessions.) The answer is a mechanism called a recess appointment.
Article II of the Constitution provides, among many other things,
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The recess-appointment mechanism exists to ensure that the federal bureaucracy can continue to function even if the Senate, which has to confirm presidential appointments, is out of session when a critical vacancy needs to be filled.
So to get his own lackey in as AG without having a Senate debate or hearing, Trump would wait until the Senate is out of session (on break) and then appoint who he wants. Media outlets are furiously trying to figure out how that would work. Here is a brief and (hopefully) easy-to-understand guide. (For anyone interested, the leading case on the issue — and the only Supreme Court case on the issue — is NLRB v Canning (2014).)
- What, technically, is a recess?
For purposes of appointments, a recess is a break in Senate business — a time during which the Senate is out of session and unavailable to do any work — for ten days or more.
- So if the Senate takes a ten-day break from business, and the AG spot is open, Trump can fill that spot without worrying about Senate confirmation?
In a word, yes.
- But what if the vacancy wasn’t created during a recess? Could Trump fire Sessions and then just wait for a recess to get around having a hearing or confirmation vote?
Yes. The Supreme Court has ruled that a vacancy does not have to occur during a recess to be filled during a recess.
- Can the Senate stop recess appointments?
Yes, if it wants to (and Mitch McConnell has not shown any interest in stopping Donald Trump or his excesses). The Supreme Court has said, as reflected above, that generally speaking, a recess is a break of ten days or more. But it also ruled that, in extraordinary circumstances (natural disaster, war, that kind of thing), a president can make a recess appointment after the Senate has been out of session for only 3 days.
To be safe and avoid a debate about what “extraordinary” means, a Senate majority leader can gavel the Senate into session (as a technical matter, that’s easy to do under Senate rules even if Senators are all out of town) and then gavel it back out every three days. McConnell made this a habit during the Obama Administration.
But if the majority leader in the Senate doesn’t do that, and if the Senate stays on break for ten or more days, then there’s no question that a president can make a recess appointment on or after the tenth day.
- How long is the appointment for?
As the text quoted above indicates, an appointment like this has an expiration date (unless the Senate confirms the appointee in the meantime): the end of the Senate’s “next session.” You might be asking, what the hell is a session? Isn’t that any time during which the Senate is back in business?
No. “In session” business-wise is not the same as “in session” constitutionally. Under the Constitution, we have a new Congress every two years. We’re presently under the thumb of the 115th Congress — a real doozy, that 115th. And every two-year Congress sits for two one-year sessions, typically from early January through mid to late December.
So here’s an easy way to look at it: a session is a year. So when the Constitution says that a recess appointee’s commission expires at the end of the next session, that just means it expires at the end of the next year — in this case, mid to late December 2018.
- So can Trump make Christie or Giuliani the new AG the next time the Senate breaks for ten days (assuming Sessions is gone)?
Not so fast. Here there is a roadblock that was created not by the Constitution, but by an Act of Congress commonly called “The Vacancies Act of 1998.” (5 USC 3345-46). That Act
limits the President’s exercise of the temporary appointment power to the following choices: (1) the Senate-confirmed first assistant to the vacant office; (2) a Senate-confirmed officer who currently works in an executive agency; or (3) a career civil servant … who has worked in the agency in which the vacancy exists for at least 90 of the past 365 days.
It’s debatable whether this law constitutes an unconstitutional interference with a president’s appointment power, but at the moment, it’s the law. So Trump would have to skip past a hack like Christie or Giuliani and plumb the ranks of federal agencies for mindless Trump loyalists. That would seem a challenging, but doable, undertaking.
After Sessions either quits or is fired, expect Trump to tell McConnell to take a ten-day break. Then Trump will find a loyalist (who will be willing to fire Mueller) somewhere in the upper ranks of the federal bureaucracy and make that person AG, an office that that person will occupy until December 2018 (or longer if the Senate confirms that person before December 2018).
Stock up on popcorn.
UPDATE: CNN is reporting that Dems have figured this out and plan to filibuster any resolution to adjourn. That’s good news — unless Republicans find a way to change the rules. They may not be able to do that in the middle of a session (rules changes usually happen at the beginning of a new Congress or new session), and 51 votes (that what’s needed for a rules change) might be hard to come by in this atmosphere. So if Dems stick to their guns, Trump might just have to keep firing Acting AG’s (every time he fires one, the next in line pops up) until he gets to a lackey.