Sessions Not First Attorney General to Rankle a President

Sessions Not First Attorney General to Rankle a President
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In late February of 2016, just days before the crucial Super Tuesday primary contests that would narrow the field of Republican presidential hopefuls, Jeff Sessions put on a red Make America Great Again hat and gave his seal of approval to Donald Trump.

"This isn't a campaign -- this is a movement," he said on stage at a rally in his home state of Alabama to a crowd of roughly 25,000. Trump grasped the significance of securing his first endorsement from a U.S. senator, and thus credibility on behalf of a conservative base.

"That's a biggie," then-candidate Trump told the audience.

It was the formal start of a relationship that would take Trump to the White House and Sessions to his dream post as attorney general of the United States -- a vindication of sorts for Sessions three decades after being denied a federal judgeship by the Senate.

But if Sessions remembers that February stage fondly, Trump now apparently views it as simply another day on the campaign trail, downplaying its import in an interview earlier this week. Instead, the president now associates Sessions with a different date: March 2, 2017, the day the attorney general recused himself from investigations into Russia's meddling in the election amid developments that he failed to disclose a meeting with the Soviet ambassador.

The recusal had a cascading effect, ultimately leading to the appointment of Special Counsel Robert Mueller, a turn of events Trump believes is damaging his agenda and presidency. Over the past several days, Trump has berated his attorney general in public statements, interviews, and online, calling him "weak" and "beleaguered" and disappointing, while declining, so far, to fire him. Once among the president's earliest and closest allies, Sessions has now become a political opponent, a change of course so startling that even Democrats who vehemently opposed the attorney general -- some called him a racist and others had called on him to resign -- have come to his defense.

But while Trump's treatment of Sessions has already garnered political backlash from his own party and prompted legal questions, the now-fraught relationship isn't exactly exclusive to this White House. Legal experts and historians say the public and persistent denigration of Sessions by Trump is unique and injurious to the institution, but note that relations between a president and a department head with the power to prosecute can become frayed.

"There's always this tension for every attorney general where you are a member of the Cabinet, but also independent in a way that no other members of the Cabinet are," said Matt Miller, a former director of the office of public affairs for the Justice Department under Attorney General Eric Holder.

The Firing of Archibald Cox

The tensions have been more apparent in some administrations than in others. The most prominent example came in October 1973 when Attorney General Elliot Richardson and his deputy, William Ruckelshaus, resigned after refusing President Richard Nixon's directive to fire Archibald Cox, an independent counsel probing the Watergate scandal. Acting Attorney General Robert Bork then dismissed Cox, and the events became known as the Saturday Night Massacre.

"Occasionally I would be called by the president, or more often by Al Haig, his chief of staff, complaining that Cox was investigating alleged wrongdoing that had nothing to do with Watergate. I would pass on their concerns to Cox," Ruckelshaus wrote recently in a New York Times op-ed. The resignations and firing "marked the beginning of the end of the Nixon presidency."

Nixon's first attorney general, John Mitchell, served 19 months in federal prison for his Watergate crimes. Mitchell is the only U.S. attorney general to go to jail.

Roughly two decades later, similar frustrations over an independent investigation would dog, but not doom, another relationship between a president and his attorney general. Janet Reno, who led the Justice Department for two terms under the Clinton administration, became a household name for high profile and controversial events during her tenure. One included her handling of the failed federal raid in Waco, Texas, and another involved the deportation of Elián González to Cuba.

But it was her sanctioning of expanding Kenneth Starr's independent probe of the Clintons that frosted her relationship with the president. Starr's original Whitewater investigation ultimately uncovered Clinton's affair with Monica Lewinsky, which set the course for his eventual impeachment.

Reno, the first woman to serve as attorney general, was Clinton's third choice for the job as head of the Justice Department, and the two were not close and did not have a history. Clinton's vexation with his attorney was a poorly kept secret in Washington at the time, but he declined to call for her resignation. Instead, he nominated her to a second term. At her memorial service last year, Clinton recalled Reno taking responsibility for the deadly Waco standoff. “That’s what she did for eight years. Up and down and up and down, she was there," he said.

Reno and Clinton demonstrate that "just because the relationship is fraught with difficulty, it doesn't mean an attorney general cannot continue to serve," said Robert Ray, who took over for Starr's investigation during the Clinton administration.

(Years later, Clinton's meeting with Obama Attorney General Loretta Lynch on a tarmac in the middle of an investigation into his wife’s emails would set off a new political firestorm. Fired FBI Director James Comey acknowledged in recent testimony that he thought about appointing a special counsel but ultimately decided against it. He also expressed concern about Lynch's handling of the probe and the politics involved.)

Unlike Clinton, other presidents have nominated attorneys general with whom they have a close relationship or friendship. John F. Kennedy appointed his brother Robert, which ultimately led to Congress passing an anti-nepotism law. Ronald Reagan chose fellow Californian and long-time friend and aide Edwin Meese. "If Ed Meese is not a good man, there are no good men," Reagan said of his attorney general.

Barack Obama chose Eric Holder, a campaign adviser who had served as deputy attorney general in the Clinton administration. Holder was a close confidant of the president's and often came under scrutiny by Republicans.

Holder was held in contempt of Congress during the investigation into the botched Fast and Furious program. Obama disagreed with Holder on the attorney general's characterization of classified leaks from National Security Administration contractor Edward Snowden as a public service. The Justice Department's push for Apple to allow the government access to the phone used by the shooter in the San Bernardino, Calif., murders last year also put Obama in a difficult spot, though he eventually came around. Obama and Holder's friendship endures, and the two continue to work together on the former president's redistricting campaign.

Friendships Come With Peril

Trust between a president and his attorney general has long been key, said Ray. "Ordinarily the drill is you pick an attorney carefully because he or she exercises a fair amount of power and discretion, particularly the ability to investigate your own administration."

But having a close friend serve in the post requires set boundaries, experts note. "Even if the attorney general is your friend, you're not going to ask him to do something inappropriate or illegal," said Miller.

Friendship between the attorney general and the president he serves can come with peril. George W. Bush nominated Alberto Gonzales, his long-time friend from his days as Texas governor. Gonzales, whose ascendance exemplified the American Dream, was steadfastly loyal the president, but his tenure is among the more controversial in history. His department's legal support of harsh interrogation and NSA surveillance programs was a source of significant contention, and some lawmakers accused him of lying to Congress. But his firing of nine U.S. attorneys in 2006 was considered most egregious and political. The next year, he resigned.

Bush defended Gonzales to the end. After accepting his resignation, the president said his attorney general was "impeded from doing important work because his good name was dragged through the mud for political reasons."

Bush's first attorney general, John Ashcroft, was a former senator and ally of the president and was generally supportive of the administration's policies in response to terrorism in the wake of the 9/11 attack. But he pushed back when he thought the White House overreached. In one famous accounting, Ashcroft refused to approve a White House surveillance program he determined to be illegal, despite the urging of Bush aides (including then-counsel Gonzales) who visited his hospital bed. Comey, then deputy attorney general, and Robert Mueller, then FBI director, intervened, and the White House restructured the program.

These historical instances highlight the sometimes-delicate lines between the Department of Justice and the administration.

"While we don't want cronies or knaves, we probably do want someone closely aligned with the president's politics and philosophy," wrote former federal prosecutor Edward Lazarus during the Gonzales controversy. "After all, we support presidential candidates in no small part because of the policies we believe our favored candidate will implement, if elected, on issues central to the Justice Department's mission."

He continued: "The problem, of course, is where the line should be drawn between having a likeminded Attorney General help institute a president's policy agenda, and having an Attorney General who is completely subservient to the interests of the White House."

Indeed, the current president's public criticism of his attorney general is particularly vexing, considering Sessions has long championed Trump's campaign rhetoric on immigration, crime, and other issues and is enforcing them at the Department of Justice. Sessions is among the most effective members of the Cabinet in carrying out the president's agenda. He has rolled back Obama-era actions on drug sentencing and issued stricter immigration enforcement policy, as examples. Earlier this week, he announced new requirements for sanctuary city funding. He is visiting El Salvador to push the administration's crackdown on the MS-13 gang. The president is also expected to give a speech on the issue on Friday.

But the president, frustrated by Sessions’ recusal, has instead focused on what he sees as the attorney general's failures.

"I want the attorney general to be much tougher on the leaks from intelligence agencies," Trump said in the Rose Garden this week. "These are intelligence agencies. We cannot have that happen."

Sessions's Defenders

Sessions' former Senate colleagues and conservative activists have risen to his defense, warning the president of dire political consequences if he were to fire him. Senate Judiciary Committee Chairman Chuck Grassley said a new attorney general would not be confirmed. South Carolina Sen. Lindsey Graham warned there would be "holy hell to pay" if Trump fired Sessions. Nebraska Sen. Ben Sasse took to the Senate floor to caution the president. "If you're thinking of making a recess appointment to push out the attorney general, forget about it," he said. "The president isn't a bull. And this country isn't a china shop." 

Sessions, meanwhile, hasn't returned any of the fire directed his way from the president, and has highlighted his department's efforts. And he has announced plans to investigate leaks, as the president has asked.

During his trip to El Salvador, he has agreed to do an interview with Fox News's Tucker Carlson, a show the president is said to watch.

"I understand his feelings about it, because this has been a big distraction for him," Sessions said of his recusal. "But ... I’m confident I made the right decisions. A decision that’s consistent for the rule of law and an attorney general who doesn’t follow the law is not very effective in leading the Department of Justice."

Sessions admitted the president's criticisms have been "kind of hurtful," but that Trump has made clear "I serve at the pleasure of the president."

The president has made clear Sessions has been serving at his displeasure.

"Time will tell, time will tell," he said of Sessions' future.

Any attempt by Sessions re-enter the president's good graces raises potential conflicts, Justice Department experts say, because the attorney general risks seeming too political.

The entire episode, which doesn't appear to be reaching a conclusion any time soon, is also likely to effect morale within the department and potentially undermines its work.

"If you feel like you're working for a dead man walking, it creates a lot of uncertainty about the decisions being made in the attorney general's office," said Emily Pierce, a former DOJ adviser under the Holder and Lynch administrations. "It's troubling, especially for the career employees who have been there through multiple administrations ... [it's an] incursion on the independence of the Justice Department."

Alexis Simendinger contributed to this report.

Caitlin Huey-Burns is a national political reporter for RealClearPolitics. She can be reached at chueyburns@realclearpolitics.com. Follow her on Twitter @CHueyBurnsRCP.

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