If Trump actually fires Sessions, what's next? Let's talk about how that would play out. 1/
Under the normal course of events, Rod Rosenstein would become Acting Attorney General. Of course, Rosenstein already is acting AG for the Mueller investigation due to Sessions' recusal. 2/
If Trump nominates a new AG and the Senate confirms, that person would then supervise the Mueller investigation unless he/she were recused for some other reason. 3/
Some, such as @Delavegalaw, have argued that a new AG should recuse from an ongoing investigation into the boss’s conduct. It's a good argument! But for purposes of this discussion, let’s assume that doesn’t happen. 4/
It's far from certain that a Trump AG nominee could win Senate confirmation under these extraordinary circumstances. Especially when GOP Senators like @bensasse are talking like this. 5/
But Trump isn't necessarily stuck with Rosenstein -- he has a couple of other options. He could try to slide another official into the role via the Vacancies Reform Act, which allows POTUS to temporarily sidestep Senate confirmation. 6/
The VRA allows POTUS to install someone already confirmed by the Senate to a different position, or anyone who’s been at DOJ for 90 days in a senior position that doesn’t require confirmation. 7/
However, it's disputed certain whether POTUS can use VRA after a firing, as opposed to a resignation or death. For this reason, the WH briefly and inanely claimed Veterans Affairs Secretary David Shulkin resigned, when he was obviously fired. 8/ politico.com/story/2018/03/…
If the administration uses the VRA improperly, the risk is huge: any action taken by someone installed in violation of its terms “shall have no force or effect.” 5 U.S.C. 3348(d)(1). 9/
As @NormEisen and @VBass noted (back when Scott Pruitt seemed a plausible replacement), this could get messy. 10/
politico.com/magazine/story…
politico.com/magazine/story…
There’s litigation underway about whether the VRA was used properly after Shulkin’s firing, but it’s unlikely the issue will be resolved soon enough for these purposes. 11/
But Trump could spill blood to avoid this problem -- he could fire Rosenstein as well! If so, the DOJ #4, Solicitor General Noel Francisco, would take over, pursuant to the current DOJ succession order. (The #3 spot is currently vacant.) 12/ assets.documentcloud.org/documents/4361…
(The succession order derives from a different statutory authority, 28 U.S.C. 508, and thus there isn't any dispute about whether it can be used after a firing.) 13/
Some feel that Francisco would be more willing to rein in Mueller; I’m quoted in this article essentially saying ¯\_(ツ)_/¯. 14/ politico.com/story/2018/04/…
Alternatively, it’s possible that Trump would be content with Rosenstein running the show -- per this intriguing @MichaelCBender and @sgurman piece, their rapport has grown. 15/ wsj.com/articles/its-f…
Or Trump might not move on Sessions at all. Sessions has a lot going for him: he’s the personification of some of Trump’s nastiest, base-feeding policies, especially on immigration. Most of the Senate GOP strongly supports him. And liberals hate him! 16/
Trump knows that firing Comey backfired massively – not only did it lead to Mueller, but Comey's replacement Chris Wray has done nothing to slow the Mueller investigation or to slip handcuffs on “Crooked Hillary.” 17/
Instead, Trump might continue to passive-aggressively grind down his Attorney General by tweet, just like the Founders intended. We shall see. 18/END
