‘Trump will buy himself an independent counsel statute’: Even if Trump replaces Sessions, Mueller will likely be safe

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Attorney General Jeff Sessions during a press conference.
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Alex Wong/Getty Images

    In yet another shakeup, President Donald Trump announced retired Gen. John Kelly – the former head of the Department of Homeland Security – will be his new chief of staff. Some have speculated that Trump may tap Attorney General Jeff Sessions to lead the DHS. That would clear the path for Trump to appoint a new attorney general – but it’s unlikely that would have any effect on special counsel Mueller’s Russia investigation.

Rounding out yet another tumultuous week for his administration, President Donald Trump announced on Friday that he would be replacing chief of staff Reince Priebus with retired marine Gen. John Kelly, who currently serves as head of the Department of Homeland Security.

A number of names have been floated to take over Kelly’s role, like Rep. Michael McFaul, who chairs the House Homeland Security Committee, and Thomas Homan, the acting head of US Immigration and Customs Enforcement.

Also in the running is Attorney General Jeff Sessions, according to speculation and some media reports.

Dana Perino, the co-host of Fox News’ “The Five,” said Friday that Kelly could have been named Trump’s chief of staff to open up the Homeland Security position for Sessions, who has recently been in hot water with Trump over his recusal from ongoing investigations into the Trump campaign’s possible collusion with Russia during the 2016 election.

“I think that this was all set up for a few weeks because the president has been so upset about Jeff Sessions and his recusal in the Russia investigation,” said Perino, who formerly served as White House press secretary under the George W. Bush administration.

She added that if Sessions spearheaded the Department of Homeland Security, it would appease Trump’s base, which favors the former Alabama senator’s hardline position on immigration and border security.

“The Republicans and conservatives that came to Jeff Sessions’ defense this week all said, ‘But he’s doing the best on the issue we care about most, and that is immigration,'” Perino said.

“Well, where can Jeff Sessions do even more on immigration? As the Secretary of Homeland Security,” she added. “So I think what they’re going to try to do is move Sessions over to DHS, and then how can conservatives complain?”

Homeland Security staffers have also privately discussed the possibility that Sessions could fill Kelly’s position, two sources told Politico, although another source close to the administration told the website such an outcome was unlikely.

Trump has fumed, both privately and publicly, about Sessions’ recusal from the Russia investigation. He called his attorney general “weak” and “beleaguered” last week, and he told the New York Times the week before that if he’d known Sessions was going to recuse himself, he would have nominated someone else for the position.

Donald Trump

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Donald Trump.
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Jonathan Ernst/Getty Images

Rising tensions

Trump’s frustration with the Russia investigation has only escalated in recent days, prompting even more attacks on his attorney general.

“Why didn’t A.G. Sessions replace Acting FBI Director Andrew McCabe, a Comey friend who was in charge of Clinton investigation but got … big dollars ($700,000) for his wife’s political run from Hillary Clinton and her representatives. Drain the Swamp!” Trump said in a pair of tweets on Wednesday.

“Attorney General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes (where are E-mails & DNC server) & Intel leakers!” he tweeted on Tuesday.

Trump has also repeatedly railed against Mueller’s investigation and repeatedly called it a “witch hunt.”

If Trump were to move Sessions to the Department of Homeland Security, that would clear the way for him to select someone else to take over Sessions’ current position as attorney general.

A new attorney general would have one critical power Sessions does not: the ability to fire special counsel Robert Mueller, who took over spearheading the FBI’s Russia investigation after Trump fired former FBI director James Comey in May.

But if he is contemplating moving Sessions to the DHS to open the door for an attorney general more favorable to his personal interests, Trump may be disappointed, because replacing Sessions may not have any effect on Mueller’s status as special counsel.

If Sessions takes over as Secretary of Homeland Security, Trump would have to appoint an acting attorney general before he formally nominates a new attorney general. That acting individual could be deputy attorney general Rod Rosenstein or someone else who has been confirmed by the Senate. Since Rosenstein himself appointed Mueller as special counsel shortly after Comey was fired, it appears highly unlikely that he would dismiss Mueller.

If someone else took over as acting attorney general, they wouldn’t need to recuse themselves as Sessions did, absent any extraordinary circumstances. However, the regulations Mueller is operating under stipulate that he can only be fired with cause.

Regardless of who the attorney general is, “there needs to be a basis to fire Mueller,” said Andrew Wright, who served as associate White House counsel to former president Barack Obama. If Mueller is removed without cause, “Rosenstein and others would object, and there would be massive backlash from the Hill,” Wright said.

‘None of the dynamics of Mueller’s probe would change’

Anthony Scaramucci

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Anthony Scaramucci.
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Mark Wilson/Getty Images

If Trump does move Sessions over to the DHS, it’s unclear who he would nominate to serve in Sessions’ place. Trump has, in recent days, increasingly begun to favor those who have shown him the most loyalty, as demonstrated by his hiring of former Wall Street financier Anthony Scaramucci and the subsequent resignations of White House press secretary Sean Spicer and chief of staff Reince Priebus.

Trump had reportedly soured on both Spicer and Priebus long before they resigned, based primarily on what he saw as their lukewarm defense of him and his agenda.

In keeping with his tendency to lean on loyalists, Trump could bring on someone like former New York mayor Rudy Giuliani or New Jersey Gov. Chris Christie, both of whom were strong Trump campaign surrogates, to take Sessions’ place. But even in that case, the attorney general “would be under intense pressure not to communicate with the president – who is the subject of the investigation – about the nature of the investigation,” Wright said. “So none of the dynamics of Mueller’s probe would really change, even with a new attorney general,” he added.

And if the Trump administration “engineers” an avenue through which to fire Mueller, “the president will buy himself an independent counsel statute,” Wright said, referring to legal actions lawmakers would likely take to revive the US Office of the Independent Counsel, which reports directly to Congress.

Trump’s attacks on Mueller began soon after Rosenstein appointed him special counsel. In addition to calling the investigation a “witch hunt,” Trump also publicly warned Mueller against delving into his finances when it emerged that the special counsel was examining his past business dealings, which Trump said fall outside Mueller’s mandate.

“I think that’s a violation,” Trump said of Mueller’s broadening probe. “Look, this is about Russia.”

In appointing Mueller, however, Rosenstein gave him broad authority not only to investigate “any links and/or coordination between the Russian government and individuals associated” with Trump’s campaign, but also to examine “any matters that arose or may arise directly from the investigation.”

Rosenstein also gave Mueller the power to investigate “any other matters within the scope of 28 C.F.R. § 600.4(a)” – including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.

The mandate’s scope is similar to that given by then-Acting Attorney General James Comey to special counsel Patrick Fitzgerald in 2003 to investigate who leaked the identity of former CIA operative Valerie Plame.

In the wake of Mueller’s expanding investigation, Trump has reportedly considered the possibility of pardoning those close to him, as well as himself.

There is no constitutional precedent addressing whether a president can pardon himself, but legal experts say that if Trump did use his pardoning power in that way, it would prompt a legal and political firestorm.

Natasha Bertrand contributed reporting.