Protestors hold up signs as they await the arrival of Attorney General Jeff Sessions, who gave opening remarks during a Drug Enforcement Administration (DEA) 360 Heroin and Opioid Response Summit at the University of Charleston, Thursday, May 11, 2017, in Charleston, W.Va. (Sam Owens, Associated Press)

Op-ed: Why it’s time for Jeff Sessions to go

For months now, Democrats and Republicans alike have argued that Attorney General Jeff Sessions had to remain in place to shield the special counsel from being fired. If President Donald Trump axed Sessions, the thinking went, he could put in his flunky as attorney general who’d then proceed to can special counsel Robert Mueller III. We have agreed with that logic, but now facts have changed, and it is no longer tenable for Session to remain atop the Justice Department.

His potential involvement, revealed by the New York Times, in a scheme to smear then-FBI Director James Comey with one bad news story a day is intolerable, if not itself evidence of obstruction of justice. He cannot credibly lead the FBI, which is under his jurisdiction, after having participated in a scheme to decapitate it in furtherance of the president’s desperation to stop the Russia investigation.

Moreover, if he was badgered not to recuse himself not only by White House Counsel Donald McGahn, but also by other White House officials, so he could protect the president (“Where’s my Roy Cohn?” the president bellowed), then he is very much a material witness in a possible conspiracy to obstruct justice (and frankly should have reported those efforts to the FBI and special counsel).

What’s more, he has repeatedly misled the Senate. His multiple misstatements as to the extent of his meetings with Russians during the campaign were either a serious case of memory impairment or an effort to keep interest in Russia as far from the president as possible. In either event, he was not truthful with the Senate.

We have also recently learned that he promised at least one senator that he would not change the policy on enforcement of marijuana laws in order to secure votes for confirmation. He either was lying or was in no position to make the promise. The result was once again to mislead the Senate. His word can no longer be taken at face value.

He continues to mislead the American people, for example, by tying illegal immigration to crime and grossly exaggerating the murder rate. If the attorney general cannot be relied upon to give an honest assessment of data, he cannot remain in his post. Justice Department lawyers cannot go into court each day without full confidence that their boss is truthful and competent in advancing the law and the facts in support of government positions that are before the judiciary.

Lastly, Sessions has done virtually nothing to defend the FBI against scurrilous, unfounded accusations of impropriety and bias. It is his job to prevent Justice and the FBI from becoming a political football. (One cannot imagine Michael Mukasey, President George W. Bush’s attorney general, allowing the FBI to be smeared by the other party.) This is not simply a matter of protecting “his guys,” but rather about protecting the impartiality of the justice system. He has utterly failed to stand up to the White House.

So what about Mueller and Sessions’ replacement? The answer here is twofold. First, until the entire Russia investigation is wrapped up, no new attorney general should be confirmed. Deputy Attorney General Rod J. Rosenstein can perform the job. The president cannot be trusted to nominate someone who respects the separation between the White House’s political hackery and the Justice Department.

Second, should Trump move to fire Rosenstein (something he could do now) and install someone he can count on to fire Mueller (or disregard the Justice Department protocol and simply do the dirty work himself), he will have unleashed a constitutional crisis. That battle should be had – without an untrustworthy attorney general in the person of Sessions to tip the scales one way or another.

Could any of this happen? The GOP majority in the Senate is now 51-49. It takes just two Republicans to deny a simple majority for a Sessions replacement. That might be too much to ask, but they should be cajoled to the only defensible position – calling for Sessions to resign and for no other attorney general to be confirmed in his place.

House Freedom Caucus Republicans are already calling for Sessions to leave on entirely different grounds. Politico reports: “In a joint opinion piece published in the Washington Examiner, (Mark) Meadows (R-N.C.) and (Jim) Jordan (R-Ohio), the chairman and former chairman, respectively, of the influential conservative House Freedom Caucus, decried the ‘manufactured hysteria’ over the probe into Russian election interference, faulting Sessions – who has recused himself from the inquiry – for allowing revelations about the investigation to reach the press.” In other words, they fault him for not interfering with the investigation enough. That’s preposterous but leaves Sessions with a narrowing base of support.

Now there is one more wrinkle. I agree with Lawfare’s Jack Goldsmith (and have thought this for some time) that Rosenstein should also be recused. Goldsmith writes:

“It later emerged that in May 2017, just before Trump fired Comey, Trump and an aide drafted an ‘angry, meandering’ termination letter to Comey at the president’s golf club in Bedminster, New Jersey. The Bedminster letter was never sent. But in a meeting in the Oval Office soon after it was drafted, Rosenstein ‘was given a copy of the original letter and agreed to write a separate memo for Mr. Trump about why Mr. Comey should be fired,’ according to the New York Times.

“In short, before the Schmidt story, we knew that Rosenstein was intimately involved in the president’s decision to fire Comey. Rosenstein’s memo was used as a pretext to fire Comey; Rosenstein knew that the president wanted to fire Comey; and he read the Bedminster draft before he wrote his own memorandum.”

Moreover, if he had any involvement or knowledge in the effort to “dig up dirt” on Comey, Rosenstein becomes a central player in an obstruction scheme.

So does that mean Sessions must stay after all? No. If Sessions leaves, Rosenstein can remain acting attorney general for all other matters except the Russia probe. For that, Rachel Brand, the third in line at Justice, can supervise the investigation. (The irony of a woman heading the investigation that almost surely entails the man who loathed and fired acting Attorney General Sally Yates is not lost on me.)

This is a mess, but it is a mess of Sessions’, Trump’s and the Republicans’ own making. It’s time for triage. That begins with Sessions stepping down.