Attorney General Jeff Sessions resigned the day after the mid-term elections, reportedly at the request of President Trump. In this Q&A, Professor David Sklansky, a former federal prosecutor, discusses the significance of Sessions resigning and the larger implications for the investigation into Russian interference in the 2016 elections, led by Special Counsel Robert Mueller.
How much power will the Acting Attorney General, Matthew Whitaker, have? Can he fire Mueller or hamper the Russia investigation, perhaps by defunding it?
Whitaker can’t fire Mueller except for cause—for example, misconduct or dereliction of duty. Moreover, Department of Justice regulations prohibit Whitaker from exercising “day-to-day supervision” over Mueller’s investigation. But Whitaker will be entitled to ask Mueller to explain any steps he takes. He can also reverse any decisions by Mueller he thinks are seriously wrong, although if he does that, he has to notify Congress. Furthermore, it’s true that Whitaker will have oversight over the budget of the Department of Justice, and that means that, in theory, he could try to squeeze Mueller’s investigation dry. And it will be Whitaker’s decision whether to forward Mueller’s final report to Congress.
How much influence will Congress have over how Whitaker goes about his job? And, can he stay Acting Attorney General indefinitely, or at some point will Congress have an opportunity to review President Trump’s choice to replace Sessions?
By law and by custom, Congress exercises significant oversight over the Executive Branch, including the Department of Justice. Congress can hold hearings, request records, and question how the department is being run—including whether and why Mueller’s investigation is being held back. Congress can also conduct its own investigation of Russian involvement in the 2016 elections and any efforts to cover it up. There is little chance that the Senate will do any of these things in any significant way, but after this week’s election, the House of Representatives is obviously a different story.
Whitaker can serve as Acting Attorney General for up to 210 days; before that time is up, Trump is supposed to nominate a permanent replacement for Sessions. But that permanent replacement could be Whitaker. And whoever it is will be allowed to run the Department of Justice while the Senate is reviewing the President’s nomination.
What is most significant about Sessions resigning? What will you be watching?
The most significant thing is why President Trump forced Sessions out. It wasn’t because of the plunging morale in the Department of Justice, and it certainly wasn’t because of the U-turns Sessions had the Department make on voting rights and criminal justice reform. On questions of policy, Sessions was completely loyal to Trump’s agenda. The problem from Trump’s perspective was that Sessions didn’t make personal loyalty to the President his number one priority. I think Sessions waited unconscionably long before recognizing the obvious need for him to recuse himself from the Russia investigation, but from Trump’s perspective the problem was that Sessions eventually did recuse himself. Trump wanted Sessions to ignore his conflicts of interest and keep control over the investigation to protect the President and his family. The big question going forward is whether Trump will now get the kind of Attorney General he has made it clear that he wants.
David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Directory of the Stanford Criminal Justice Center. He is the author of Democracy and the Police (Stanford University Press 2008), and he writes regularly about criminal procedure and law enforcement.