As President Trump moves closer to an all-out assault on Special Counsel Robert Mueller, the question is: How will the lawyers around him respond? They understand that the president sees them as an extension of his personal staff, in place to serve him as he pleases: to get done what he believes is necessary. Those who have not yet lost their ethical bearings have the choice to resist or to enable. The news of the last few days is not promising.
Attorney General Jeff Sessions fired deputy FBI director Andrew McCabe hours before McCabe’s retirement, as the White House urged Sessions on publicly. Sessions could and did point to the recommendations before him from career officials. But, whatever the still-undetermined merits of the decision to dismiss McCabe, the fact remains that the attorney general rushed to do what the president openly pressed for and then publicly celebrated.
Sessions might instead have sent a clear message to the president that he meant what he said about maintaining even the public appearance of independence from White House pressure. For example, he could have deferred the decision on McCabe until later, advising the White House he would not act while the president was agitating publicly for the dismissal. He did not. He also had the choice, but declined, to recuse himself from participation in the decision.
Not too long ago, Sessions commendably rebuffed the president’s attacks on him for failing to direct an investigation of Hillary Clinton. This time around, in the firing of McCabe, he has helped to normalize the procedure by which the president, observing only in name the principle of non-interference in Justice Department matters, is repeatedly using Twitter to express opinions and exhorting official action on law enforcement matters.
The trouble with Sessions’ conduct runs still deeper. The firing of McCabe quickly became the rationale for an attack on the special counsel when Trump’s personal lawyer John Dowd informed the Daily Beast:
I pray that Acting Attorney General Rosenstein will follow the brilliant and courageous example of the FBI Office of Professional Responsibility and Attorney General Jeff Sessions and bring an end to alleged Russia Collusion investigation manufactured by McCabe’s boss James Comey based upon a fraudulent and corrupt Dossier.
Dowd initially stated that he was speaking for the president and as his lawyer before declaring that he had in fact been commenting in a personal capacity. He then reported that, while the statement was his own, the president had “no problem” with it. Dowd was right that he and the president shared the same view of the significance for the Mueller investigation of the McCabe firing. The president quickly took up his counsel’s argument on Twitter.
By laying the foundation for this fresh, orchestrated case for the end of the Russian investigation, Sessions appears to have abrogated a commitment, made to the Senate in June 2017, that he would take no step toward firing Mueller.
Sen. Mark Warner: Will you commit to the committee not to take personal actions that might not result in director Mueller's firing or dismissal?
Sessions: I can say that with confidence...
Warner: You would not take any actions to have the special investigator removed.
Sessions: I don't think that's appropriate for me to do.
Did Sessions’s rush to fire McCabe fall under the umbrella of any “action to have [Mueller] removed?” If Sessions had any knowledge that the president and his counsel were prepared to seize on the dismissal to call for Mueller’s firing, then he would have lent support to the plan in a manner inconsistent with his pledge to Warner. Certainly Sessions knew weeks ago that the president was singling out McCabe in his denigration of the “corrupt” FBI leadership. He also must know that McCabe is a witness in the special counsel’s obstruction investigation. These considerations alone should have been sufficient to alert the attorney general to the risks of taking an active part in firing McCabe—especially hurriedly, to beat his retirement date, under public pressure from the president.
But even if Sessions missed all of this, he now understands how the president and his counsel used the firing of McCabe. This may not have been another Saturday Night Massacre, but it may turn out to have been the prelude. And Sessions is—or he has been made—a party to it.
In the massacre of Watergate fame, the attorney general at the time, Elliot Richardson, discovered that the president and White House advisers were maneuvering to force out the special prosecutor, Archibald Cox and “induce [Richardson] to go along.” As Richardson wrote in an Atlantic piece in March of 1976 (titled “The Saturday Night Massacre”), Nixon’s plan was to have him help unwittingly with the ouster of Cox and yet not feel he had to resign.
But that attorney general figured out what was afoot and would not “go along.’