Attorney General Jeff Sessions resigned at President Donald Trump’s request on Wednesday, ending a tumultuous tenure marked by repeated public humiliations and raising new questions about the fate of special counsel Robert Mueller’s investigation.
Word of the Justice Department leader’s ouster came via a Twitter post from Trump, who thanked the former Alabama senator for his service and announced that Sessions’ chief of staff, Matthew Whitaker, would take over as acting sttorney general.
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Trump added that a permanent replacement would be nominated “at a later date.”
While the change atop DOJ doesn’t affect Rod Rosenstein, the embattled deputy attorney general who has been supervising Mueller’s probe into the Trump 2016 campaign and Russian hackers, it does mean Rosenstein will no longer oversee the special counsel’s work.
Rosenstein was in charge of the probe only because Sessions had recused himself from any involvement with the special counsel, and a DOJ spokesperson indicated Wednesday that Whitaker would take over “all matters under the purview of the Department of Justice,” including the Mueller probe.
As Mueller’s boss, Whitaker will have control over the special counsel’s budget, as well as his decisions on subpoenas, indictments and the public disclosure of a final report describing his findings about Russian meddling in the 2016 election, any possible coordination between the Kremlin and the Trump campaign and Trump’s potential attempts to obstruct justice.
While Whitaker, a former federal prosecutor from Iowa who joined the Justice Department under Sessions last September, has spoken highly of the special counsel himself, he has also been an outspoken critic of the Russia probe.
He has suggested that Mueller’s budget could be tightened to placate the president and he’s also argued on cable television that Trump should be cleared of wrongdoing in his decision to fire James Comey as FBI director in May 2017. That move is at the center of the obstruction probe.
“There is no criminal case to be made on an obstruction of justice,” Whitaker said on CNN.
Whitaker has also written that Mueller’s probe should not include any examination into the Trump Organization and the president’s finances.
“The President is absolutely correct. Mueller has come up to a red line in the Russia 2016 election-meddling investigation that he is dangerously close to crossing,” he wrote in a CNN op-ed.
Whitaker’s past commentary drew immediate calls for him to recuse himself from the Russia probe, although there was no indication that would happen as of Wednesday afternoon.
“Given his previous comments advocating defunding and imposing limitations on the Mueller investigation, Mr. Whitaker should recuse himself from its oversight for the duration of his time as acting attorney general,” Senate Minority Leader Chuck Schumer said in a statement.
With the GOP growing its majority in Tuesday’s midterm elections, though, Democrats will face an uphill battle in swatting down any Trump nominee after the new year.
Few believe Whitaker will be the permanent replacement. According to people familiar with the thinking, the White House’s preference is to tap a permanent replacement who is already Senate confirmed, like Labor Secretary Alex Acosta. Acosta, however, is reluctant to take the job before the Mueller report is issued.
Other high-profile names have surfaced in recent days as possible Sessions’ replacements, including Kris Kobach, the controversial Kansas secretary of state — and strong Trump ally — who lost a gubernatorial bid on Tuesday.
But Joe diGenova, an informal Trump legal adviser who nearly joined the president’s personal legal team earlier this year, shot down the Kobach speculation.
“I’d not consider him someone that’d be ready to take over a job like that,” diGenova told POLITICO.
Instead, he suggested Trump consider tapping Rudy Giuliani, the former New York mayor and current member of the president’s legal team. Giuliani turned down the attorney general post during Trump’s transition in the hopes of landing secretary of State.
“He’d know how to clean house, which it desperately needs,” diGenova said. “It’s going to happen one way or another. It’s just a matter of who does it.”
In a text message to POLITICO on Wednesday, Giuliani appeared to take himself out of the running.
“Joe is a good friend, but I’m not a candidate,” he said.
As an outspoken advocate of the president’s positions on the Mueller probe, Giuliani would almost certainly draw calls for his recusal. But diGenova fired back that loyalty to a president hasn’t precluded others from having the job.
“Bobby Kennedy was the president’s brother. He’s more qualified than Bobby Kennedy was,” diGenova said of Giuliani.
“Once you get past Rudy then you get into the leftovers,” he added.
A pair of Giuliani associates told POLITICO on Wednesday they wouldn’t rule out his potential appointment to the attorney general slot.
“He feels a strong loyalty to the president,” said Jon Sale, a former federal prosecutor and law school classmate of Giuliani’s. “If the president asked, I don’t think he say ‘no.’”
“One big case to resolve first,” said Tony Carbonetti, a longtime Giuliani adviser, referring to the Mueller probe. “That should be done before anything else.”
Carbonetti said he spoke with the former New York mayor earlier Wednesday just before the news broke about Sessions. Giuliani made no mention of the attorney general opening, he said.
“To my knowledge, they’ve not had that conversation,” he said.
Some Trump allies think Whitaker might work his way into the job.
“If he proves himself capable, he can probably end up with the job full time,” said former Trump campaign adviser Barry Bennett, who insisted that Whitaker’s past commentary wouldn’t prevent him from serving as a capable boss to Mueller.
The Wall Street Journal also reported last month that Trump was considering five potential replacements for Sessions: Health and Human Services Secretary Alex Azar, Transportation Department general counsel Steven Bradbury, former George H.W. Bush Attorney General William Barr, Deputy Secretary of State John Sullivan and Janice Rogers Brown, a retired judge from the U.S. Court of Appeals for the District of Columbia Circuit.
Whitaker’s appointment could also be subject to legal challenges, lawyers said. Trump used a 1998 law, the Vacancies Reform Act, to install Whitaker in the attorney general slot on an acting basis. However, another, older statute specifies the order of succession at the Justice Department as automatically elevating the deputy attorney general when the attorney general’s post becomes vacant.
That law doesn’t mention as a potential successor the attorney general’s chief of staff, who is not Senate-confirmed.
The issue of how much authority the president has to make temporary appointments at the Justice Department has been unresolved for years. In 2001, White House Counsel Alberto Gonzales issued a memo saying the president lacked such authority unless the order of succession in the DOJ-focused law was exhausted. But in 2007, the Justice Department’s Office of Legal Counsel took the opposite view, concluding that the president could use the newer Vacancies Reform Act to bypass the succession order. If Trump manages to quickly nominate and confirm a successor to Sessions, the issue could be moot.
“By the time someone challenges it and it went to court, it may be a while,” said Marty Lederman, a Georgetown law professor and former Justice Department official. He added that a legal challenge might have more traction if Whitaker remains in the post for a protracted period and if Trump doesn’t seem to be trying to confirm a replacement.
“It’s really uncertain who would have the standing to challenge and what the prospects would be for what a court would ultimately do,” Lederman said.
The DOJ tumult is also guaranteed to cause a heated Senate debate when Trump eventually taps a permanent replacement for Sessions.
Sessions’ departure comes as no surprise. The attorney general has been weathering verbal attacks from the president for moer than a year.
A Republican close to the White House said that Sessions actually submitted a letter of resignation more than a year ago. When Trump didn’t immediately use it, Sessions asked for it back. It’s unclear whether an undated letter of resignation released Wednesday is the same letter or a different one.
The Justice Department did not immediately inform staffers of Sessions’ firing. A DOJ employee told POLITICO that they found out when their supervisor sent their office a link to Trump’s tweet.
“There is no communication from leadership,” said the employee, who requested anonymity to speak candidly. “We are apparently expected to monitor Trump’s Twitter feed for his fiats.”
Some DOJ employees were unhappy that they didn’t get to say goodbye to Sessions since his resignation took effect immediately, according to a DOJ official.
“We love him, so it’s sad to see him go,” the official said.
The official also added that DOJ employees had “developed a thick skin” and gotten used to the “new normal” of Trump’s attacks on Sessions.
Indeed, Trump has spent months using Twitter and media interviews to savage the 71-year old former senator of Alabama over his decision to recuse himself from overseeing his department’s probe into Kremlin meddling in the 2016 presidential campaign. In an interview last summer with Hill.TV, the president took it a step further when he complained that he didn’t “have an attorney general.”
Still, Sessions’ resignation from the Trump Cabinet marks a dramatic turnaround for one of the president’s earliest endorsers and most vocal 2016 campaign surrogates. Sessions abandoned a Senate seat he’d held for two decades to join Trump’s administration as its top law enforcement official.
He was more than an early political supporter. Sessions helped launch some of the earliest intellectual and ideological strains that Trump would embrace as a presidential candidate with no campaign experience, latching on to the then-senator’s views as a longtime advocate for curtailing immigration, legal and illegal alike.
Once in Trump’s administration, Sessions remained an ardent law-and-order conservative even as the criminal justice reform movement gained ground among his fellow Republicans and within the president’s inner circle.
“In my time as Attorney General we have restored and upheld the rule of law — a glorious tradition that each of us has a responsibility to safeguard,” Sessions wrote in his resignation letter to the president.
Sessions’ Republican brand of populism could be seen infusing Trump’s earliest messages on the campaign trail. Two of his aides became key parts of the president’s staff: Rick Dearborn, who served through last March as deputy White House chief of staff and Stephen Miller, who remains a senior adviser and architect for some of the president’s most controversial policies.
At Justice, Sessions will be remembered for his work to roll back many of the department’s Obama-era initiatives and to enhance the focus on combating gangs and cracking down on sanctuary cities. All were policies Trump touted as administration accomplishments, although rarely with Sessions at his side.
Early in his tenure, Sessions took steps to seek tougher sentences against those accused of drug crimes, reversing a policy Attorney General Eric Holder instituted in 2013 that instructed prosecutors to omit any mention of drug quantity in formal charging documents as a way to get around mandatory minimum sentences.
Sessions took a similar approach to immigration. He sought to expand and streamline the immigration courts and rescinded legal precedents providing asylum protections to those fleeing gang-related violence. And he endorsed and helped implement the controversial “zero-tolerance” policy that led to the chaotic separation of more than 2,000 immigrant children from their parents at the border.
While the White House denied it was pursuing a policy of “family separation,” Sessions leaned into the strategy, telling conservative radio host Hugh Hewitt, “you can’t be giving immunity to people who bring children with them recklessly and improperly and illegally.”
Some of Sessions’ immigration-focused policies ran into serious resistance in the courts, including an effort to withhold federal grants from so-called sanctuary cities. A series of judges ruled that the new limits usurped the role of Congress in dictating the terms of federal funding.
Sessions also became a quick favorite of police chiefs and sheriffs, many of whom praised his decision to retreat from Obama-era cases alleging that some police departments were infected by pervasive racism and excessive use of deadly force. Warning against politicians who “run down police,” the attorney general suggested a small number of rogue officers were to blame for problems of bias and unwarranted violence against suspects.
Even when he was barely on speaking terms with the president, Sessions often peppered his public speeches with half a dozen or more references to Trump.
Sessions boasted that under Trump’s leadership, DOJ had reached “unprecedented success at effectuating the president’s agenda.”
But none of it was enough to save the embattled attorney general’s job.
Sessions’ early decision to recuse himself from the FBI’s investigation into Russian meddling in the 2016 election — months before Mueller’s appointment — marked his doom. It was a move grounded in precedent and DOJ guidelines, given Sessions’ outspoken role as a Trump surrogate in a bitterly fought White House campaign that was being investigated even before Election Day.
The calls for his recusal came as Sessions faced withering criticism from Democrats when it was revealed he had not told Congress about meetings with Russian officials during the campaign. That decision enraged Trump.
“The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn’t tell me he was going to recuse himself…I would have quickly picked someone else. So much time and money wasted, so many lives ruined…and Sessions knew better than most that there was No Collusion!” Trump wrote on Twitter in June 2018.
Sessions’ recusal paved the way for the eventual appointment of Mueller, whose 18-month-old investigation continues to cloud Trump’s presidency as it has scored guilty pleas from top former Trump aides Michael Flynn, Paul Manafort and Rick Gates.
Despite playing no role in the ongoing investigation, Sessions faced constant pressure from Trump to end the probe. Trump accused Sessions of slow-walking document releases related to the probe and fumed about DOJ and FBI officials who he saw as adversarial to his White House.
In private, the president even reportedly referred to Sessions as the cartoon character “Mr. Magoo.”
Sessions mostly has taken the blows, even as lawmakers and others in Trump’s orbit defended him during key parts of his tenure.
But Trump’s abuse did get under Sessions’ skin. In May 2017, the attorney general drafted and sent his resignation letter to the White House shortly after Mueller’s appointment as special counsel and following a blowout argument between the two men in the Oval Office, according to a New York Times report.
Sessions “would later tell associates that the demeaning way the president addressed him was the most humiliating experience in decades of public life,” the Times reported.
Eric Geller, Eliana Johnson, Daniel Lippman, Josh Gerstein, Nancy Cook and Elana Schor contributed to this report.