An abstract, in-case-of-emergency-break-glass executive order drafted by the Trump administration in March may become real-world applicable as the president, raging publicly at his Justice Department, mulls firing special counsel Robert Mueller.
Since taking office, the Trump administration has twice rewritten an executive order that outlines the order of succession at the Justice Department — once after President Donald Trump fired acting Attorney General Sally Yates for refusing to defend his travel ban, and then again two months later. The executive order outlines a list of who would be elevated to the position of acting attorney general if the person up the food chain recuses himself, resigns, gets fired or is no longer in a position to serve.
In the past, former Justice Department officials and legal experts said, the order of succession is no more than an academic exercise — a chain of command applicable only in the event of an attack or crisis when government officials are killed and it is not clear who should be in charge.
But Trump and the Russia investigation that is tightening around him have changed the game.
Attorney General Jeff Sessions has already recused himself from overseeing the investigation into possible collusion between Trump campaign aides and Russian operatives, after it was revealed that he failed to disclose meetings with the Russian ambassador during the campaign. And Trump started his morning on Friday by appearing to take a public shot at his deputy attorney general, Rod Rosenstein, who has increasingly become the target of his impulsive anger.
“I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt,” the president tweeted.
The Justice Department said in a statement on Friday that there are no current plans for a recusal, but Rosenstein has said in the past that he would back away from overseeing Mueller’s investigation if his role in the ouster of former FBI Director James Comey becomes a conflict.
That has legal experts closely examining the dry executive order to figure out who might be next up to bat, or, as Democratic lawyers and consultants view it, who might serve as Trump’s next sacrificial lamb.
“We know Rachel Brand is the next victim,” said Benjamin Wittes, a senior fellow at the Brookings Institution and the editor-in-chief of Lawfare, referring to the former George W. Bush official who was recently confirmed as associate attorney general, the third-highest position in the Justice Department.
“For those of us who have high confidence in Rachel — the more confidence you have in someone in this role, the less long you think they’ll last,” said Wittes, who said he considers Brand a friend. “That does put a very high premium on the question of who is next.”
That question, however, has become more complicated because the Trump administration has been slow to fill government positions and get those officials confirmed. Typically, the solicitor general would be next in line after the associate attorney general, followed by the list of five assistant U.S. attorneys, the order of which would be determined by the attorney general. But none of those individuals have been confirmed by the Senate, and they would be unable to serve as acting attorney general without Senate confirmation.
Because of that, the executive order comes into play — one that puts next in line after Brand the U.S. attorney for the Eastern District of Virginia, Dana Boente. Boente, a career federal prosecutor and an appointee of former President Barack Obama, was tapped last April to serve as the interim head of the Justice Department’s national security division, which oversees the FBI’s Russia investigation.
Boente, who was briefly thrust into the no. 2 spot at the Justice Department after Yates was fired, was also tasked with phoning Preet Bharara, then U.S. Attorney for the Southern District of New York, to deliver the unexpected news that he was fired. At the time, Boente also vowed to defend Trump’s travel ban in the future.
Boente is followed, on the succession list, by the U.S. attorney for the Eastern District of North Carolina, John Stuart Bruce; and the U.S. attorney for the Northern District of Texas, John Parker. Both are career prosecutors who are serving in their posts on an interim basis, until a presidential appointment is made. But they would not need to be Senate confirmed to take over.
It was not clear why the Trump administration chose those three U.S. attorneys to be in the succession line. During the Obama administration, sources familiar with the drafting of the old executive order said, the positions were chosen based on geographic diversity, and purposely included big cities where officials assumed there would be a talented attorney capable of stepping in: The U.S. attorneys on the succession list were from Washington, D.C., Chicago and Los Angeles.
Some former Justice Department officials said they would find it inconceivable for Trump to clean house, or to fire Mueller — even taking into account the sometimes erratic behavior of the commander in chief.
“This president is so unpredictable, it’s hard to say,” said Emily Pierce, a former Justice Department official in the Obama administration. “It would be the craziest thing he’s done to date if he were to start firing the special counsel or Rosenstein. I’m trying to give him the benefit of the doubt that he realizes how much trouble he may be in — and that with the firing of Comey, he wouldn’t do that.”
But others were less willing to predict the actions of a president who prides himself on being unpredictable. “At the rate we’re going, it’s clearly possible, because you could go through a number of people in one go depending on the things that are asked of them,” said Jane Chong, a national security and law associate at the Hoover Institution. “If Rosenstein had refused to write the memo [laying out the case for Comey’s firing], you can imagine him being fired, and you can imagine Brand doing the same thing. It’s not difficult to see a scenario like that” playing out down the line, Chong said.
In Washington circles, the comparison being made is between Trump’s desire to rid himself of Mueller, at potentially any cost, and the Saturday Night Massacre during Watergate, in 1973, when the attorney general and the deputy attorney general both resigned after refusing to obey President Richard Nixon’s order to fire special prosecutor Archibald Cox. It fell to the solicitor general at the time, Robert Bork, to do the deed.
“I think the Watergate scenario would make most self-respecting lawyers loath to put themselves in the role that Bork ended up playing,” said Brian Fallon, a former Obama Justice Department and Hillary Clinton spokesman. “Most career-minded independent lawyers that have high regard for the Justice Department as an institution would be loath to be the modern-day equivalent to Bork.”
But Trump, too, is cognizant of the comparison to Nixon, according to one adviser. The president, who friends said does not enjoy living in Washington and is strained by the demanding hours of the job, is motivated to carry on because he “doesn’t want to go down in history as a guy who tried and failed,” said the adviser. “He doesn’t want to be the second president in history to resign.”
A White House spokeswoman referred queries to the Justice Department. A Justice Department spokesman declined to comment.
Darren Samuelsohn contributed to this report.