Jeff Sessions’ ouster on Wednesday is already stoking a political firestorm on Capitol Hill, as Democrats warn that Robert Mueller’s investigation could be in jeopardy while GOP senators prepare for the suddenly easier task of confirming a replacement.
Sessions’ departure was hardly surprising for senators who have anticipated for months that President Donald Trump would force him from the Department of Justice helm following Tuesday’s midterms. But the ascension of new acting attorney general Matt Whitaker could rejigger the politics of two long-stalled legislative efforts: a criminal justice bill that counts bipartisan support in the Senate but that Sessions resisted, and a bipartisan plan to shield Mueller from firing that Democrats have long pushed to pass.
House Democrats won’t take power until January, giving them little recourse to respond to Sessions’ ouster. But both Rep. Jerrold Nadler, the top Democrat on the House Judiciary Committee, and Rep. Elijah Cummings, who’s expected to chair the House Oversight Committee next year, signaled plans to investigate Sessions’ removal.
In the Senate, the GOP’s strong showing in the midterms means Majority Leader Mitch McConnell (R-Ky.) will have an easier time confirming Sessions’ replacement. That process is likely to happen early next year, given Trump’s announcement that he has yet to decide on a permanent leader for DOJ.
McConnell told reporters Wednesday, before Sessions’ firing became public, that he was preparing for Trump to make high-level changes after the midterms, “and we’ll process them.”
“It’s not up to me who they put in the Cabinet. They serve at his pleasure,” McConnell said of Trump. “And if he makes changes, we’ll be dealing with whoever he sends up.”
Whitaker is poised to take over supervision of the Mueller probe following Sessions’ ouster because the former Alabama GOP senator had recused himself from the Russia investigation in early 2017, before Mueller’s appointment. Democrats are hopeful that the new acting attorney general’s elevation doesn’t prematurely doom the special counsel’s work.
Republicans’ stronger hold on the Senate next year gives Democrats fewer tools to halt the confirmation of a new attorney general. But they still pushed on Wednesday for Whitaker to recuse himself from overseeing the Mueller probe, citing Whitaker’s public criticism of the special counsel’s investigation and suggestion that Mueller’s budget could get chopped.
“I’d say this: protecting Mueller and his investigation is paramount,” Senate Minority Leader Chuck Schumer (D-N.Y.) told reporters on Wednesday. “It would create a constitutional crisis if this were a prelude to ending or greatly limiting the Mueller investigation.”
Incoming Republican Utah Senator Mitt Romney also raised concern over Mueller’s probe, tweeting that it’s vital that the investigation “proceeds to its conclusion unimpeded” under Whitaker.
The Senate’s two top Democratic backers of bipartisan legislation crafted to shield Mueller’s job, Cory Booker of New Jersey and Chris Coons of Delaware, also made a public push for Congress to pass their legislation. Sen. Lindsey Graham (R-S.C.), who joined Sen. Thom Tillis (R-N.C.) to steer that legislation through the Judiciary Committee, was silent on the future of the Mueller protection bill in his own statement on Sessions’ departure.
A Democratic House is likely to act favorably on legislation that would protect Mueller’s investigation. But it’s unclear whether McConnell would allow the bill to advance given his previous skepticism of its necessity. If Whitaker acts on previous suggestions to starve Mueller’s probe of resources or to sharply limit his scope, the matter could come to a head sooner.
And if Democrats wanted to force the issue of formal protection for Mueller, they’re about to get a vehicle to do so: the must-pass year-end spending bill that lawmakers will have to take up before current government funding expires on Dec. 7.
McConnell has, however, agreed to conduct a whip count of where his conference stands on a bipartisan criminal justice measure for which Senate Judiciary Chairman Chuck Grassley (R-Iowa) has spent years amassing bipartisan support. Sessions, known for his hawkish stance on criminal justice issues, tangled with Grassley on the issue earlier this year and has opposed even a smaller-scale House-passed bill that addresses only federal prisons, not sentencing.
With Whitaker, criminal justice reform backers have a potentially far more amenable partner in their efforts, which are backed by the influential Koch network on the right as well as some progressive advocacy groups. It’s not clear whether McConnell will tee up a vote on the criminal justice measure if it fares well in this month’s whip count. But at least one GOP senator portrayed Sessions’ departure as a possible sea change.
“I am hopeful that President Trump will take this opportunity to nominate a replacement that is invested in criminal justice reform,” Sen. Tim Scott (R-S.C.) said after thanking Sessions in a tweet. “The AG is uniquely placed to lead our nation forward on this important issue.”
Holly Harris, a veteran Kentucky GOP strategist who’s working to pass a criminal justice deal at the nonprofit Justice Action Network, sounded a positive note about the arrival of a new acting attorney general.
“We have an incredible opportunity here to chart a completely different course for our country’s justice system,” Harris said in an interview. “I’m very hopeful that new leadership at the Department of Justice will work with us to do that.”