It has been a year of ironies: President Trump’s personal lawyer, Michael Cohen, once said he would take a bullet for Trump and now seeks to destroy him (and to do so pro bono). Sen. Ted Cruz (R-Texas) once denounced Trump for suggesting Cruz’s father was a presidential assassin but now politically relies on and praises the man who called him “Lying Ted.”
The greatest irony of all, however, could be how the newspaper that Trump loves to call “the failing New York Times” succeeded in delivering to him what he has long wanted: a clean shot at firing Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, and then installing a new AG to oversee special counsel Robert Mueller. To make this more bizarre, Trump could rely for all this on the man he publicly called on to be fired and possibly prosecuted — former FBI Acting Director Andrew McCabe.{mosads}
The Times dropped a bombshell story late Friday that Rosenstein discussed secretly recording Trump and seeking cabinet support to force him out of office as being incapacitated under the 25h Amendment. Rosenstein denies the story as “inaccurate and factually incorrect,” insisting “there is no basis to invoke the 25th Amendment.”
However, McCabe reportedly wrote memos stating that Rosenstein did discuss the possibility of taping and entrapping the president. Trump has previously referred to McCabe’s memos as “fake.”
At least one source has said the comments about secret taping were made in jest. Of course, joking about secretly taping your boss or forcing him from office is not a huge improvement, particularly when you are technically controlling a special counsel’s investigation of the president. Even in jest, it fulfills Trump’s long narrative of a Justice Department set against him from the outset.
So how could the Times clear the way for Trump to clean house at Justice and end up with Mueller directly controlled by an attorney general of his choosing? Simple.
First, based on these reports, Trump could fire Rosenstein for being, at best, insubordinate or, at worst, conspiratorial. Trump could then put in place the person he hopes would replace Sessions one day, and that replacement would take over supervision of Mueller and his investigation. Trump could then wait until shortly after the November midterm elections to fire Sessions — as he is widely expected to do anyway — and name his new deputy attorney general as acting AG. He would then have the attorney general of his choosing to oversee Mueller, on an acting basis and pending confirmation.
Both the attorney general and deputy attorney general are subject to Senate confirmation. The president, however, can appoint an acting attorney general or acting deputy when the Senate is in recess. Trump could use a recess in coordination with the Republican-held Senate. Even if the Senate flips in the midterms, there will be a lame-duck — and potentially cooperative — Senate from November to January.
Trump also could simply make an appointment as he did when he fired Acting Attorney General Sally Yates after she ordered the Justice Department not to defend his immigration orders. The only wrinkle in this scenario is a long-debated statutory provision under the Federal Vacancies Reform Act. The act allows a president to appoint an acting official when a Senate-confirmable officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Yet, there has always been a good-faith objection to using the act to replace a fired official. With Yates, the issue was narrower because she was, in fact, refusing to perform her duties by ordering the department not to assist the sitting president — a position I believe was unwarranted and justified her termination.
This, however, would be different. This would be a straightforward, old-fashioned “Apprentice”-like firing. Other provisions in statutes and the Constitution refer to “removal from office” but not this act. Accordingly, Rosenstein could not challenge the right to fire him — but others could challenge the legitimacy of someone being appointed to replace him on an acting basis.
In the end, with either a continuing or a lame-duck Republican Senate, Trump likely could force out both Rosenstein and Sessions and use his longtime foes — the New York Times and Andrew McCabe — as supporting evidence. And he could do it before the November election, by citing the Times story and the McCabe memos to prove a now-irreconcilable relationship with Rosenstein.
None of this means that firing either of these men would be advisable or warranted.
I have said before that the president is wrong in his criticism of Sessions, who did the right thing in recusing himself from the Russia investigation. And while I have criticized Rosenstein over what I view as his conflicts of interest (as well as a poor choice of Mueller as special counsel, given Mueller’s own conflicts), I have opposed firing him or otherwise hindering the Mueller investigation. I still believe it is in the interests of the country for both Sessions and Rosenstein to stay in their positions for the duration of the Mueller investigation, if not beyond.
However, “the failing New York Times” relying on McCabe’s “fake memos” could give Trump the perfect “non-obstructive” reason to start the expected firings early. He could then have in place an acting or actual attorney general who orders the completion of the Russia investigation by a date certain. Even more striking is that it would be Rosenstein, not Trump, who loses his job over alleged ill-advised, offhand comments.
Merriam-Webster defines irony as that “incongruity between the actual result of a sequence of events” and “the expected result.” If so, we are living in truly interesting and ironic times.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.