USC experts suss the ouster of the U.S. attorney general

November 8, 2018

President Trump ousted U.S. Attorney General Jeff Sessions and replaced him with a political loyalist, one day after the midterm elections wrested control of the House of Representatives from Republicans — but strengthened their position in the Senate. The move wasn’t unexpected, but raises questions about the integrity of the U.S. Justice Department, ongoing probe by Special Counsel Robert Mueller III and the rule of law. Here’s what USC experts say:

Contact: Gary Polakovic (213) 740-9226 or polakovi@usc.edu or Gilien Silsby (213) 500-8673 silsby@usc.edu.

 

Is the United States approaching another Watergate moment?

Orin Kerr, Frances R. and John J. Duggan Distinguished Professor of Law, USC Gould School of Law.

“This is a very serious moment for constitutional governance if Trump is acting to block an ongoing investigation into himself, his family or his friends.” Kerr said.

  • Developments could move quickly after Sessions’ removal and with installation of a new acting attorney general under pressure to halt the Mueller investigation.
  • With the midterm elections over, there’s a significant chance Mueller may be bringing more indictments soon.
  • Democrats won’t control the House of Representatives until Jan. 3, potentially too late to check Trump’s actions.
  • Trump has made clear that he wants an attorney general who is loyal to him personally, and now he has hand-picked an acting attoney general to oversee the Mueller investigation.

“If the acting Attorney General (Matthew Whitaker) shuts down the investigation, then we’re veering into Watergate territory,” Kerr said.  “This raises a serious threat to the rule of law.”

Kerr is an expert in criminal procedure and computer crime. He clerked for former Justice Kennedy.

Contact: (213) 740-5617 or (202) 365-3303 or okerr@law.usc.edu.

 

How will midterm election results shape decisions?

Sam Erman is an associate professor of law in the USC Gould School of Law.

“President Trump is upset Sessions didn’t protect him better, so this is clearly coming out of hostility to the Mueller investigation. The president has said he wants to fire Mueller, so it’s hard to see this in an innocent light and not part of the president’s ongoing effort to undermine or limit the investigation,” Erman said.

  • When one party controlled Congress and the White House for the foreseeable future, the DOJ was the only place for credible investigation of the president.
  • Removal of Sessions gives President Trump more latitude in dealing with the Mueller investigation.
  • Key mitigating factor is Democratic control of the House of Representatives, which will have subpoena power to investigate or to impeach, but not to bring charges.
  • Key supporting factor for Trump will be stronger Republican control of the Senate, where he will be able to find more support for a permanent attorney general after Jan. 1.

“The Attorney General (Sessions) being removed by the president is a major step toward the president simply removing himself from being investigated,” Erman said.

Erman is an expert in constitutional law, legal history and the Supreme Court. He clerked for former Justices Kennedy and Stevens.

Contact: (213) 740-6372 or (734) 717-2642 or serman@law.usc.edu.

 

How do these developments affect U.S. justice guardians?

William Resh, associate professor in the USC Sol Price School of Public Policy.

“President Trump and the GOP Congress have so savaged the federal investigation and law enforcement agencies – the FBI, CIA and Department of Justice (DOJ) – that the damage is irreparable for this administration,” Resh said.

  • Congress must pass laws to firewall DOJ investigations from White House interference.
  • Civil service pros working under this kind of uncertainty become risk-averse and less willing to speak truth to power, which compromises U.S. security and policy.

“Never before has the United States seen a president with more confidence in authoritarian leaders than his own government agencies. It’s absurd,” Resh said.

Resh is an expert in the U.S. presidency and executive branch politics and management. He focuses on how administrative structure and political environments affect the behaviors, perceptions and working relationships of civil servants and how political control affects agency performance and policy prerogatives.

Contact: (213) 821-7844 or wresh@usc.edu.

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