If Jeff Sessions Exits, Trump Could Choose An Acting Attorney General From Among Thousands Of People
Who would run the Justice Department if Trump fires the attorney general (or the attorney general quits)? Existing laws give the president a surprising number of different routes to fill a vacancy.
Over the past week, President Trump has criticized Attorney General Jeff Sessions in interviews, on Twitter, and literally from the White House Rose Garden.
“I'm very disappointed with the attorney general,” Trump said Tuesday when asked whether he plans to fire Sessions, whose recusal from the Russia investigation has prompted Trump’s criticism. “But we will see what happens. Time will tell. Time will tell.”
Trump could, of course, fire Sessions or Sessions could leave the position. Either situation would prompt an uncertain chain of events, especially with a potentially extremely difficult confirmation fight for any new nominee to permanently fill the role.
The first and most pressing question, with the special counsel’s investigation still ongoing: Who would become acting attorney general?
By default, under federal law, Deputy Attorney General Rod Rosenstein would become acting attorney general. (This was the reason why then-Deputy Attorney General Sally Yates was acting attorney general at the beginning of the Trump administration.)
Trump has also criticized Rosenstein, however. By authorizing the special counsel to look into Trump’s campaign contacts with Russia, it’s entirely possible — given what Trump has said about the Justice Department in recent weeks — that he wouldn’t want Rosenstein at the helm.
Who else could Trump have lead the Justice Department?
Actually, there are literally thousands of people who Trump could — at a moment’s notice — make the acting attorney general for the next seven months.
Under the law that would make Rosenstein acting attorney general, if neither Sessions nor he is “available to exercise the duties of the office of Attorney General,” then Associate Attorney General Rachel Brand “shall act as Attorney General.” (That law also sets forth an option for Sessions to “designate” the solicitor general and various section chiefs as acting attorney general as a part of a further order of succession, but none of Trump’s nominees to those spots have yet been confirmed by the Senate.)
Under an executive order signed by Trump on March 31, there is another option: Three US attorneys listed in a further order of succession. The problem there is that only one of those, the US attorney for the Eastern District of Virginia — Dana Boente — has been confirmed by the Senate to his post (and thus eligible under the order the act as attorney general). He was Trump’s acting attorney general when the president fired Yates, so it’s entirely possible that the situation could quickly result in Boente as acting attorney general yet again if Trump does fire Sessions.
Another discussed possibility: Trump issuing a recess appointment of a replacement who could serve until the end of the next session of Congress. That, though, requires a recess — a move Democrats (and possibly Republicans, depending on the circumstances) might try to keep from happening.
But those wouldn’t be Trump’s only options. Under the Vacancies Reform Act, Trump has two other options. And, under a 2007 opinion from the Office of Legal Counsel, Trump could proceed immediately to either of these options — without first proceeding through the succession laid out in the other law.
First, he could name anyone nominated to any other position who has been confirmed by the Senate to serve as the acting attorney general.
Yes, that means, Nikki Haley — now serving as the US ambassador to the United Nations — could be named acting attorney general. Or any other cabinet member. Or some of the few lower-level confirmed members of the Trump administration — like David Bernhardt, confirmed just Monday as the deputy secretary of the Interior Department.
Additionally, and opening up a potentially much more broad universe, Trump also could name anyone at the Justice Department who makes roughly $100,000 a year or more (Grade 15 on the General Schedule pay scale, or “GS-15,” or higher) and has been there for 90 days in the past year to serve as acting attorney general.
More than 6,000 employees of the Justice Department likely fit these requirements, a BuzzFeed News review of federal employment records from the end of March shows. At that point, the department employed nearly 6,900 GS-15 staff — more than 6,300 of whom were hired for full-time, non-seasonal work. (The March records are the most recent vintage published by the Office of Personnel Management; it’s possible that some of the employees no longer work for the Justice Department.)
The list includes nearly 3,000 lawyers in the department’s main offices, boards, and divisions.
These lawyers include, at this point, many of Trump’s so-called “beachhead team” staff at the Justice Department. Anywhere from six to 17 of the lawyers who joined the Justice Department as Trump began his presidency would be eligible to serve as acting attorney general under the provision in the Vacancies Reform Act, according to ProPublica’s listing of the beachhead teams.
More than 900 other attorneys in other parts of the Justice Department — including more than 50 each from the US Trustee Program; Federal Bureau of Investigation; Executive Office for Immigration Review; Bureau of Prisons; Drug Enforcement Administration; and Bureau of Alcohol, Tobacco, Firearms, and Explosives — also are among the nearly 6,900 GS-15 staff counted by BuzzFeed News.
In addition to the lawyers, the Justice Department’s GS-15 staff also includes more than 600 people responsible for criminal investigations in the FBI and more than 200 people who do so with the DEA. It includes more than 600 other people at the FBI — including staff in management, information technology, and intelligence operations. Another large group: roughly 200 medical officers with the Bureau of Prisons.
The list includes statisticians, public affairs staff, auditors, and accountants — as well as a chaplain with the Bureau of Prisons.