Ethics Observations On The Sessions Resignation And Reaction

In ethical, legal and Constitutional terms, there isn’t really very much legitimate controversy here. The key word here is “legitimate.” “The resistance” is trying its best to spin the issues and confuse the public—yet again. The news media wants to help. They have nothing.

—Attorney General Sessions should have resigned long, long ago. He debased himself by remaining in office. His boss, the President, was publicly abusive, and obviously did not want him to continue in the job.

—I cannot begin to express sufficiently my contempt for the dishonest and absurd argument that Sessions leaving office constitutes an “obstruction of justice” under even the most tortured interpretation of the term. A President can fire and replace his own Cabinet members; this was the issue that technically led to Andrew Johnson’s impeachment. Congress had passed a law (later ruled unconstitutional) that prohibited firing a Cabinet member without Congressional consent. The current theory is even more crack-brained than the claim that Trump firing James Comey, who was incompetent, devious and untrustworthy was obstruction. The “theory,” if you can call it that, is that replacing an AG who had a conflict of interest and had to recuse himself from an investigation is somehow sinister, because the new AG will actually be able to do his job, and supervise a Justice Department investigation.

—The investigation is officially about Russian interference with the 2016 election. Because the Trump campaign and its participants (not the Trump administration: this occurred before the election) might have been implicated or drawn into the investigation, Sessions, who was part of the campaign organization, had to recuse himself as a potential target, witness, or otherwise involved person, both for potential conflicts reasons and to avoid any appearance of impropriety. However, these do not apply to Sessions’ successor, much as Democrats and “the resistance” would want Mueller’s investigation to be completely without supervision by anyone approved by the President.

—There is no reason in the world why the acting AG, Matt Whitaker, should recuse himself from involvement in the Mueller matter. Claims to the contrary are made without grounding in law or ethics.

—Another intellectually dishonest argument is that the President can’t appoint an Acting AG because Sessions was fired.  Professor Jonathan Turley neatly disposed of this nonsense here.

Of course Sessions wasn’t fired: he submitted a letter of resignation. That he was asked to resign and would have been fired in he did not is irrelevant. He didn’t have to resign. He could have said, “I won’t resign, you’ll have to fire me.” That’s what Comey did. (That’s what I’ve done, on one occasion.) Unless the people and journalists making that claim have never worked in any organization in their lives, it is one more in a long line of cynical misrepresentations designed to deceive the ignorant and feed social media indignation.

—-The President legally appointed a temporary replacement for Sessions who will then assume all of the powers and responsibilities of the job, including those Sessions could not fulfill, thus eliminating the Mueller investigation oversight from Rod Rosenstein, who only had the responsibility because of Sessions’ recusal. What is there possibly about this to protest? Yet Move-On is organizing a protest, which  like so many in the past two years is really just an organized tantrum. The Soros-funded organization wrote in a post,

“Donald Trump just crossed a red line, violating the independence of the investigation pursuing criminal charges in the Trump-Russia scandal and cover-up. Trump putting himself above the law is a threat to our democracy, and we’ve got to get Congress to stop him. We’re mobilizing immediately to demand accountability, because Trump is not above the law.”

Never mind that the “scandal” is entirely a myth, as is the “cover-up.” Sessions resigning, being replaced, and the replacement doing the Attorney General’s job is not “above the law,” but the law.

The threat to democracy is not in the system being followed, but in mobs like Move-On  demonizing the orderly due process of the law when it inconveniences their little plots and plans.

18 thoughts on “Ethics Observations On The Sessions Resignation And Reaction

  1. Interesting how everything is a constitutional crisis, unless it involves something provided for IN the constitution, then it’s an archaic remnant that needs to be eliminated to save our democracy.

    • Progressives don’t feel dirty telling us that we have to shred democracy, the Constitution and our cherished values in order to “stop a threat to democracy, the Constitution and our cherished values.” They’ve already had decades of soul-crushing experience telling us that the best thing for a baby is to kill the baby.

  2. Sessions technically wasn’t fired. He resigned at presidential request. Dodgy, but lawful.

    The Appointments Clause divides constitutional officers into two classes: principal officers, who must be appointed through the advice and consent mechanism; and inferior officers, who may be appointed through advice and consent of the Senate, but whose appointment Congress may place instead in the President alone, in the Courts of Law, or in the Heads of Departments.

    It would be difficult arguing that the Attorney General is not a Principal Officer, though I’d like to hear contrary views on that.

    The question of recess appointments doesn’t arise, as the Senate is not in recess.

    The Federal Vacancies Reform Act 1998 *does* allow a President to temporarily appoint someone already in another role that has been appointed with the advice and consent of the Senate to be a Principal officer, for a limited period of 210 days.

    But that does not appear to apply either, unless a long expired appointment as a Federal Prosecutor in 2004 counts, an office the appointee does not currently hold.


    ” A more complicated scenario would be to rely on the provision codified at 5 U.S. Code Section 3345(a)(2), which states: “notwithstanding [the default rule that the deputy becomes the acting], the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346.”

    This situation certainly tests the bounds of constitutional law. If allowed to stand, it raises intriguing possibilities for future Presidents – or the incumbent – being able to reshuffle cabinets every few hundred days, and completely evade congressional scrutiny of nominees, providing appointments are of nominees who have ever been appointed with the advice and consent of any previous senate in any capacity whatsoever.

    Bear in mind IANAL, but I’m sure if I’m wrong someone who is a lawyer will step up and correct me, with evidence and caselaw.

    • As I wrote, it’s not “dodgy” at all. It’s a common courtesy and face-saver at all organization levels. If the individual doesn’t want to resign, that’s his choice. Same with severance agreements that say you’ll get a decent package but you have to eschew attacking them. Not dodgy.

    • The Turley post referenced by Jack deals with this argument. The acting appointee qualifies under section a(3), not a(2), because he was previously Sessions’ chief of staff. Incidentally, this makes it look as if he was put in as Sessions CoS for the purpose of enabling just this acting appointment. Interesting.

      • How does this match with the constitutional requirement for advice and consent of the Senate?

        It seems to me that this is an additional requirement.

        By some fancy footwork and rules lawyering, it has been deemed in the past that anyone currently holding an office that requires Senatorial consent is qualified, even if they have nothing to do with the DOJ.

        Ideally, the appointee would both have been in the DOJ for 90 days, and also hold a position requiring senatorial consent. But only the latter is constitutionally required.

  3. Scenario 2: The Federal Vacancies Reform Act of 1998

    A more complicated scenario would be to rely on the provision codified at 5 U.S. Code Section 3345(a)(2), which states: “notwithstanding [the default rule that the deputy becomes the acting], the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346.”

    In other words, the president may direct anyone who holds a “PAS” office—one requiring presidential appointment and Senate confirmation—to serve as acting attorney general for 210 days (and potentially longer, depending upon when the president nominates someone to the position). And under the terms of the Federal Vacancies Reform Act, the individual does not even have to be serving in the Justice Department at the time he or she is tapped to be acting attorney general; this person would just have to hold a Senate-confirmed position.

    Except the new appointee doesn’t hold a Senate confirmed position.

    • Funny how none of what you raised mattered when it was Obama doing it.

      Not attacking you, Zoe: you are just availing us of what is being said out there.

      But the hypocrisy is getting old, and common Americans are paying attention.

  4. My irony detector went haywire at the idea of an organization called “Move-On” telling people they should be upset about something. There are more trite and immature names they could have called themselves, but not many. Some that come to mind are “Big Frickin’ Deal”, “Get Over It”, “Give It A Rest”, “Are You Still On About That?”, and “I’ve Already Forgotten”. It’s one thing to try to sweep Democrat malfeasance under the rug, but an organization based around that is ethically estopped from criticizing anyone else, justified or not.

    I suppose it’s better that they’re bright neon hypocrites, though–it makes it easier for them to lose credibility.

    • No, you’re missing the way the law has always been interpreted. There is no precedent, anywhere, for holding that the legal firing of a subordinate is the obstruction of justice. In both cases, there was ample cause. The required intent would be, and is, impossible to prove, and disingenuous to claim. That won’t stop the crazed anti-Trump Furies like Waters and Richard Painter, of course.

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