Why Trump Hasn’t Fired Sessions

“DISGRACEFUL.” “Weak.” “Beleaguered.” President Donald Trump has been unsparing in publicly castigating his attorney general, Jeff Sessions, in the year since Sessions recused himself from the investigation into potential collusion between Trump’s campaign and Russia. Privately, Trump has berated Sessions, reportedly calling him an “idiot” and saying that hiring him was a mistake. He asked Sessions to resign following Special Counsel Robert Mueller’s appointment to lead the probe, according to The New York Times, but then wouldn’t accept his resignation. And he has been weighing firing Mueller or Deputy Attorney General Rod Rosenstein in recent days, rather than the man who, in Trump’s eyes, empowered them.

The president has fired or forced out upwards of 20 cabinet officials and top aides, so why does the man he has most-often criticized still have a job? And what would happen if he were fired, which Trump has reportedly been mulling this week? Legal experts and political strategists who have either worked directly with the president or observed his behavior from afar attribute Trump’s reluctance to fire Sessions to two major considerations: Fears in the White House that the move would cost the president support among GOP voters and members of Congress, who generally like and support Sessions, and the risk of provoking further allegations of obstruction of justice—both of which could deepen the challenges already facing the administration.

“I'm absolutely certain the Washington swamp will bubble up with obstruction accusations,” Michael Caputo, a former adviser to Trump’s campaign, said. He noted that while he, personally, was not worried that the president would actually commit obstruction by firing Sessions, to Trump’s critics, “his McDonald's order is obstruction.” Another former Trump campaign adviser, who worked closely with Sessions and requested anonymity to speak freely about the ongoing investigation, agreed. “Firing the [attorney general] could trigger unintended consequences such as charges linked to obstruction of justice. I’m not sure it has merit, but it would be thrown at him.”

Some legal experts disagree, arguing that, depending on Trump’s motives, such a dismissal could actually constitute obstruction. “The issue would be whether the president had a corrupt purpose—that is, a desire to cover up his own wrongdoing—when he fired Sessions,” Louis Seidman, a professor of constitutional law at Georgetown, said. Seidman acknowledged the debate among legal scholars about whether a sitting president can be charged as such for performing acts that are otherwise within their constitutional powers. But he said he believes Trump could be charged with obstruction because “obstruction of justice, by its nature, is inconsistent with the president’s constitutional authority to take care that the laws are faithfully executed.” Jens David Ohlin, a professor at Cornell Law School who specializes in criminal law, said he believed that firing Sessions “would immediately provoke a political crisis for Trump and would accelerate impeachment talk—because the firing would be a major obstruction of justice, this one even larger than the Comey firing.” And despite its skepticism of the legal merits, it’s clear that the White House is taking the political consequences of the charge seriously. Roger Stone, a long-time informal adviser to Trump, said the president’s advisors “have convinced him he will be impeached if he does” fire Sessions.

Still, it is not clear that further allegations of obstruction—and, consequently, talk of impeachment—are what has stopped Trump from ousting Sessions, especially since he has allies who agree that Sessions never should have accepted the job to begin with if he was going to recuse himself from the Russia investigation. “I think Jeff Sessions engaged in wrongful conduct by not telling the president before he was appointed, ‘I’m going to recuse myself,’” Harvard Law professor Alan Dershowitz, who dined with Trump this week, told Trump ally and Fox News host Sean Hannity on Wednesday night. “The president would never have appointed him. The president doesn't want a part-time attorney general.” Joe diGenova, a lawyer who was briefly considered for a spot on Trump’s legal team, agreed with Dershowitz. And Caputo told me that, although Sessions “earned the president’s respect through a bruising election campaign … at some point even the most loyal person has to say: What the heck? The attorney general's decision to recuse himself released inside-the-Beltway hounds committed to destroy the president, his family and his closest friends—because they believe an outsider must never be elected president again.”

A source familiar with Sessions’s thinking who requested anonymity to speak freely about the attorney general’s relationship with Trump noted that Sessions has tackled policies “that have really hit on the president’s marquee issues” even if he is generally quiet about it. “He’s never been a toot-his-own-horn kind of guy,” this person said of Sessions. “He’d rather be in his office reading a CBO report or something. It's typical of the way he operates. But, to me, it’s very basic. If not but for this whole Russia issue, Trump and Sessions would be best friends.”

The tension had eased, slightly, by the new year. But it escalated again when Sessions released a rare statement in late February defending himself against a Twitter attack by the president. Critics, meanwhile, have argued that Sessions still appeases the president in subtle ways, such as by not publicly defending FBI and DOJ employees probing Russia’s election interference when the president called them “Fake & Corrupt” in a tweet. “It does seem to me quietly stunning that when a deputy attorney general, a sitting U.S. attorney in New York, multiple career prosecutors, and the entire FBI are being accused of being explicitly corrupt and criminal, the attorney general—the boss of all those people—has yet to utter a public word in their defense,” former federal prosecutor Patrick Cotter said. “That certainly makes it easier for Trump to continue those attacks.”

A person familiar with Trump’s thinking who requested anonymity to discuss the investigation candidly said he believes that, for Trump, the question of whether to fire Sessions is less about obstruction than politics. “I don’t think the obstruction question enters into [Trump’s] mind—I think that now it’s a purely political calculation. Of course Trump has mused about firing Sessions. But then the question becomes: Who would take his place?”

The former campaign adviser raised this as an issue, too, noting that the Senate Judiciary Committee has warned Trump that it won’t hold confirmation hearings for a new attorney general if Sessions is dismissed (and leading Senate Republicans said last summer that recess appointments were not an option). But that was then, and this is now, said the person familiar with the president’s thinking. “If you had asked me six months ago what the consequences would be if Trump fired Sessions, I would have said: ‘He would be impeached and Republicans would be leading the way.’ Now, I’m not so sure.” This person, who is a Republican, pointed to what he saw as the GOP’s reluctance to hold Trump accountable for actions ranging from firing former FBI Director James Comey to failing to adequately address allegations that he had his lawyer pay hush money to a porn star. “If Trump makes the political calculation that he can weather the storm of firing these guys, whether it’s Sessions or Rosenstein, and shutting down the investigation, he’ll do it,” this person said.

Rick Tyler, a Republican strategist who worked for Senator Ted Cruz and has been critical of Trump, agreed. “When Trump has had enough, I have no doubt that he will fire him and only Democrats will complain,” he said. “Not that they support Sessions, but to highlight the chaos that is the Trump administration.” Tyler added that while it was “likely” Trump had been heeding his advisers’ warnings against firing Sessions because of the threats of obstruction charges, “I don’t think he believes that there would be a backlash now. He’s tested Congress’s reactions on several occasions, McCabe being the latest where the reactions were the equivalent of a shoulder shrug,” Tyler said, referring to Deputy FBI Director Andrew McCabe’s firing last month, two days before he was set to retire. “The other reason is, he hasn’t met his replacement yet. But when he does, it will happen faster than Sessions can say, ‘In America, no one is above the law.’”

There may be another consideration at play, said the former federal prosecutor Patrick Cotter. “If Sessions were pushed out altogether, he might find himself both more vulnerable and more inclined to cooperate with Mueller.” Mueller is investigating a period last summer when Trump privately discussed firing Sessions and attacked him in a series of tweets, according to The Washington Post, and Sessions’s conversations during the campaign with former Russian Ambassador Sergey Kislyak and Trump campaign adviser George Papadopoulos have been closely scrutinized. At one point, the FBI opened an investigation into whether Sessions perjured himself in congressional testimony when he said he had no contact with Russians during the campaign. “On a day-to-day basis and in all things other than the Russia probe, Sessions seems to be Trump’s guy,” Cotter said. “And if Trump does get into a tough spot later, perhaps having an attorney general willing to back you no matter what you do (e.g., by issuing an opinion saying that the president can’t be charged with a crime, or that firing Mueller is legal) will prove useful.”

Elaina Plott contributed reporting.