One of the leading candidates to replace Moore, should it come to that, would have to be none other than the person who was last elected to that very seat: Jefferson Beauregard Sessions III. Sessions, of course, is performing another job right now as attorney general of the United States. And while he has taken a wrecking ball to many of the most time-honored principles of the department, it is what he is not doing (and indeed is unable to do) that raises the biggest concern around his possible return to his old job. Sessions recused himself from the Justice Department’s investigation into Russian attempts to interfere in last year’s presidential campaign and handed the matter over to his deputy, Rod J. Rosenstein, after it came out that Sessions had given inaccurate testimony to the Senate about his meetings with Russian Foreign Minister Sergey Kislyak. Rosenstein, in turn, despite a very shaky start at the department, appointed Mueller to lead the Russia investigation, including whether President Trump’s campaign colluded with Russian operatives, and has since allowed that investigation to proceed independently.
If Sessions returns to the Senate, however, Trump will nominate another attorney general. And you can imagine what kind of litmus test he’d have for his new choice: Trump would want someone willing to shut down the Russia investigation. The president himself has said that he wouldn’t have made Sessions attorney general if he knew that Sessions would recuse from the Russia investigation.
Notably, a new attorney general would not even need to fire Mueller. Mueller serves under regulations that govern the appointment of a special counsel. I had the privilege of drafting those regulations nearly 20 years ago. We all knew at the time that they were the creation of the attorney general, and could therefore be revoked by the attorney general, too. So a new attorney general could simply repeal the regulations. Mueller would go poof, and his investigation would cease. Any facts, prosecutions, and investigative material that Mueller had uncovered would then lie under the supervision of the new appointee, selected by a president who’s been vocal about his objections to Sessions’s recusal. And if you think firing Mueller or repealing the regulations is too much, consider this: the new attorney general could simply say that he doesn’t have the same conflict of interest as Sessions did and assert that he can do Mueller’s job himself. (Of course, the paradigmatic case for a special counsel’s appointment, as we all understood during the drafting, is the presidentially nominated attorney general being asked to investigate the president. But that understanding won’t stop a willful attorney general.)