Having fired Secretary of State Rex Tillerson in cold blood this week, President Trump is reportedly now turning a gimlet eye to Attorney General Jeff Sessions, with a view to replacing him with Environmental Protection Agency Administrator Scott Pruitt. That alarms even Sessions’ critics, who fear Pruitt—with his proven willingness to do the president’s bidding—might interfere with, or even fire, Special Counsel Bob Mueller.
Tempting as the prospect of Attorney General Pruitt might seem to the president, he should resist it for three reasons. This move could be challenged in the courts, setting off a barrage of litigation. Pruitt might find himself too conflicted to touch the Mueller investigation, just as Sessions was. And the firing could well worsen the president’s exposure to obstruction of justice proceedings.
The president’s distaste for Rosenstein, however, is well known. If Trump wants to quickly sack Sessions and sideline Rosenstein by installing Pruitt, he might look to a statute known as the Vacancies Reform Act. The VRA allows the president to ignore standard operating procedure and insert a hand-picked acting head of the Department of Justice for a minimum of 210 days—more than long enough to shut down the special counsel that so annoys the president.
But even if Trump tries this route—installing Pruitt as temporary attorney general—he could still run into problems. The VRA allows the president to name an acting attorney general were Sessions to “die, resign, or … otherwise [be] unable to perform the functions and duties of the office.” Trump could pick anyone who has already been confirmed by the Senate to any job in the executive branch—from Pruitt to Secretary of Education Betsy DeVos to the undersecretary for farm and foreign agricultural services—and make him or her the acting attorney general. But nowhere among the triggering events allowing such an appointment does the act expressly list firings. Several legal commentators have argued that it cannot be used by the president, as law professor Steve Vladeck put it, “to hand-pick a short-term (and, potentially, un-re-confirmable) successor.” That would make a mockery of the Senate’s constitutional “advise and consent” role.
It’s anything but an easy way out of his special counsel woes.