Jeff Sessions, U.S. attorney general (Photographer: Andrew Harrer/Bloomberg)

Sessions and Mueller Are on Different Missions

(Bloomberg View) -- What would Attorney General Jeff Sessions do if President Donald Trump fired Special Counsel Robert Mueller? That's easy: He'd nod and keep clinging to his post.

The nation's top legal officer desperately wants to keep his job, and Trump has made clear that he’s on thin ice. So it was no surprise last weekend when former FBI Deputy Director Andrew McCabe was fired as Trump demanded -- nevermind his fast-approaching retirement or the need to protect the independence of the Justice Department.

There may have been merit in taking some action against McCabe, a confidant of former FBI Director James Comey who was fired by the president. But that wasn’t why Trump targeted him. Instead, he meant to kneecap the probe and distract from his dealings with Russians. 

Mueller's fate clearly is on the line. As the probe deepens, Trump is intensifying his public attacks, which may be more easily dismissed as mere posturing if not for last year’s attempted firing of the special counsel. Trump only backed off when White House Counsel Donald McGahn threatened to resign.

In recent days, South Carolina Senator Lindsey Graham predicted impeachment proceedings if Trump followed through on the threats, with Utah Senator Orrin Hatch calling it the “stupidest thing” Trump could do. House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell issued stern warnings against interfering with the investigation. But few are backing legislation that might protect Mueller.

Deputy Attorney General Rod Rosenstein, who is in charge of the Russian inquiry, would probably resign, as might FBI Director Christopher Wray. It would be reminiscent of the infamous 1973 "Saturday Night Massacre" when President Nixon fired the Watergate special prosecutor, causing his attorney general and deputy attorney general to resign in protest.

Few in Washington expect Sessions to follow that course if similar actions were taken today.

There is crucial context both in why Rosenstein took charge of the Russian investigation and the reasons for firing McCabe.

The choice of Rosenstein, a respected U.S. attorney, was a calculated one. Sessions wanted to pursue his ideological agenda -- anti-immigration, tough on crime, and right-wing appointments -- while Rosenstein focused on managing the department and bringing expertise to criminal prosecutions.

But those plans were thwarted when Sessions was caught misleading the Senate in his confirmation hearings on his dealings with the Russians during the Trump campaign. Under pressure, he had to recuse himself from the Trump-Russia investigation. He also vowed to recuse himself from any matters involving the Hillary Clinton campaign or the Clinton Foundation.

That left Rosenstein to run the Russia investigation. When Trump fired the FBI director for pursuing the Russia investigation, Rosenstein tapped Mueller as special counsel. That infuriated Trump, who has spent months threatening to fire Sessions for allowing this to happen. So the attorney general has tried to accommodate the White House at every other potential flashpoint, including the McCabe dismissal.

McCabe was fired by Sessions for authorizing a leak in 2016 on the investigation into the Clinton Foundation and foreign money. He was also accused of lacking candor when interviewed by investigators. But Sessions has not made public any part of the inquiry by the department's inspector general, Michael Horowitz. Known as a straight shooter, he recommended McCabe's dismissal. McCabe countered that his firing was really about trying to discredit Comey and the Mueller investigation. McCabe has already appeared as a witness.

To fire him for leaks seems specious. First, the actual leak to the Wall Street Journal, contrary to Trump's assertion, suggested how McCabe was intent on pursuing a real investigation into the Clinton Foundation.

Leaks, including pertaining to criminal inquiries, are common with the FBI. If Sessions wants a full-scale leak inquiry, he could start with Rudy Guiliani's friends in the New York office of the FBI. Their leaks against Hillary Clinton in the closing weeks of the 2016 campaign were calculated for maximum electoral damage. I once asked Oscar Goodman, a famous mob lawyer and later mayor of Las Vegas, how he won acquittals for some bad guys. "Easy," he replied, "FBI abuse," including leaks.

The irony of Sessions firing McCabe over a lack of candor was put on full display on Wednesday, when ABC News reported that McCabe authorized an inquiry into Sessions' lack of candor before Congress; it was later closed. If McCabe lied to FBI investigators about a leak he authorized, that would be grounds for dismissal. He denies this. The attorney general should release the IG's findings on McCabe immediately.  

Both Trump and his outside attorney, John Dowd, seized on the McCabe firing as a reason to end the Mueller inquiry. The president's in-house attorney, Ty Cobb, then insisted the president had no intention of firing Mueller. Then Trump hired lawyer Joe diGenova, a right-wing hit man who has criticized Rosenstein, Wray and Mueller.

No one knows what to expect from Trump when he feels threatened. But few believe Sessions would follow the brave example set by another attorney general during a similarly dangerous moment for our democracy. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Albert R. Hunt is a Bloomberg View columnist. He was the executive editor of Bloomberg News, before which he was a reporter, bureau chief and executive Washington editor at the Wall Street Journal.

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