The following article by Peter Baker was posted on the New York Times website June 5, 2018:
President Trump made a career of firing people on TV. Now, he is expressing his disappointment with Attorney General Jeff Sessions, but has not uttered two key words.Published OnJuly 26, 2017CreditImage by Doug Mills/The New York Times
WASHINGTON — For nearly a year, President Trump has been relentlessly attacking his handpicked attorney general for recusing himself from the Russia investigation that has so nettled him. And so in that sense, his tweet on Tuesday morning was simply the latest in a long string.
“The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn’t tell me he was going to recuse himself,” Mr. Trump wrote. “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!”
But what made this tweet so striking was that it encapsulated the essential contradictions of Mr. Trump’s arguments. In fewer than 280 characters, he acknowledged perhaps as explicitly as he ever has that the reason he is mad at Mr. Sessions is that the attorney general did not shut down the investigation into Mr. Trump’s campaign. To critics, that is all but an admission of obstruction of justice, or at least the desire to obstruct justice.
And yet according to the expansive legal theory advanced by his lawyers, Mr. Trump is singularly empowered to end the investigation himself. As the head of the executive branch, his lawyers say, nothing constrains the president from exercising his authority to determine how the Justice Department uses its investigative resources. By this rendering, Mr. Trump cannot obstruct justice even if he orders himself exonerated in the Russia matter.
So then why lay responsibility on Mr. Sessions? Because, it seems, he has become the president’s favorite whipping boy for not doing what Mr. Trump himself has so far not dared to do.
“Just because you can do something doesn’t mean you won’t get impeached for doing it,” said Cameron Smith, a former aide to Mr. Sessions. “What’s happening here is you have a president saying, ‘I can do what I want to do.’ Well, are you going to do it or not? The answer is no because he does not have the political cover.”
The president has been furious with Mr. Sessions over the recusal since the moment the attorney general stepped aside in March 2017, citing his own role in Mr. Trump’s campaign. At one point, the president even tried to pressure Mr. Sessions to reverse himself, only to be rebuffed.
Mr. Trump first publicly expressed his anger with Mr. Sessions over the recusal in an interview last July in which he said it was “very unfair to the president.” He has followed up with periodic barrages on Twitter and in other public comments ever since.
The implication of his attacks has been that he wanted a loyalist in charge of the Justice Department. But Tuesday’s tweet went further by making clear that he was counting on Mr. Sessions not just to run a fair investigation but to halt it altogether. Instead, his deputy attorney general, Rod J. Rosenstein, took over and appointed the special counsel, Robert S. Mueller III.
“Trump’s saying he wanted a marionette whose strings he could pull to shutter the investigation,” said Adam Goldberg, who was a special associate White House counsel to President Bill Clinton during various investigations. “I’m sure the cronies who broke the law and are now convicted felons agree.”
Senator Chuck Schumer of New York, the Democratic minority leader, went to the floor of the Senate on Tuesday to cite the latest tweet as proof that Mr. Trump thinks he is above the law.
“The president’s tweet regarding Attorney General Sessions this morning is part of a pattern, where the president admits out loud and shamelessly that he was trying to take steps to end the Russia probe,” Mr. Schumer said. “This latest, stunning admission,” he added, “is just more evidence that the president may have something to hide. If he did nothing wrong, President Trump should welcome a thorough investigation to exonerate him.”
Still, even some scholars who are not on Mr. Trump’s payroll argue that the legal situation is not that clear-cut, even if the intent of Tuesday’s tweet was. The president, in this view, does not need to browbeat Mr. Sessions about ending the investigation when he could simply order it scuttled on his own.
“Yes, that is an explicit statement that Trump wanted an attorney general who would shut down the Russia investigation and is mad at Sessions for recusing himself and not shutting it down,” said Jack L. Goldsmith, a Harvard Law School professor and top Justice Department official under President George W. Bush. “That sounds bad. It sounds like Trump wants to interfere in the investigation.”
But Mr. Goldsmith, who has been a critic of Mr. Trump’s, nonetheless said that the president had “the constitutional authority to supervise criminal investigations” and could fire Mr. Sessions for recusing himself. An honest and innocent president could still conclude that an investigation like this was so without merit and so damaging to foreign policy that it should be ended, not out of self-interest.
“Everyone is assuming that when Trump makes these now commonplace threats, he is acting with corrupt intent, and maybe he is,” Mr. Goldsmith added. “But that has to be proved, probably over a very high bar. I am not exactly sure at this point what the corrupt intent is. The fact that Trump is so open and brazen about all this actually might make it harder for Mueller to show corrupt intent, though we don’t know what Mueller knows.”
The Justice Department said it had no comment on the president’s latest tweet on Tuesday, and the White House declined to elaborate. “Look, the president’s made his position on this extremely clear and I don’t have anything to add beyond on that,” said Sarah Huckabee Sanders, the White House press secretary.
Mr. Sessions’s defenders, including both liberals and conservatives, said that under Justice Department guidelines he had no alternative but to recuse himself given his history as an adviser in Mr. Trump’s campaign.
“Jeff Sessions had no choice but to recuse himself,” Senator Lindsey Graham, Republican of South Carolina, told reporters on Tuesday. “I don’t think there’s any lawyer in the country that would advise Jeff Sessions” not to. If anything, Mr. Graham added, Mr. Rosenstein might have to consider stepping aside, too.
Mr. Trump has not followed through on his threats to fire Mr. Sessions in part because the attorney general retains strong support among fellow Republicans in the Senate, where he served for 20 years. “As a former colleague of ours, I think he is very popular with our members, and I hope he’ll remain in the job,” Senator Mitch McConnell of Kentucky, the Republican majority leader, said on Tuesday.
But Mr. Smith, the former aide to Mr. Sessions who is now a vice president at the R Street Institute, a free-market-oriented research organization, said the president had also shied away from firing the attorney general because Mr. Sessions is popular with the same conservative supporters that Mr. Trump needs to survive his many travails.
“What we’ve got here is a president trying to damage Sessions so he can remove him without political damage,” Mr. Smith said. “He still needs the political base.”
Nicholas Fandos contributed reporting.