Hopefully, you are at least somewhat familiar with the Saturday Night Massacre. Without going into all the details, on October 20, 1973, President Nixon attempted to seize control of the Watergate investigation and avoid complying with a subpoena compelling him to turn over copies of conversations that had been taped in his White House offices. He ordered his attorney general Elliot Richardson to fire the independent special prosecutor he had appointed, a man named Archibald Cox.
There were at least two problems with that order from Richardson’s point of view. First, he was prohibited by law from firing Cox without cause, meaning examples of gross improprieties or malfeasance in office. Cox hadn’t done anything to merit removal. Second, when Richardson was going through the confirmation process, he had specifically promised the Senate that he would not fire Cox without cause. Rather than break that promise he refused to comply with Nixon’s order and resigned.
Nixon then made the same demand of the deputy attorney general William Ruckelshaus. But Ruckelshaus also refused to fire Cox and resigned. At the time, the third in succession was Robert Bork, who was serving as the solicitor general. Bork agreed to fire Cox and was later rewarded by Ronald Reagan with a nomination to the Supreme Court.
Today things are quite similar but different in a couple of important respects. Attorney General Jeff Sessions recused himself from the Russia investigation and so was not responsible for the appointment of special counsel Robert Mueller. That job fell to deputy attorney general Rod Rosenstein. Another difference is that the line of succession has changed. Today, the solicitor general (currently Noel Francisco) is fourth in the line of command. The third position belongs to the associate attorney general, which is currently vacant.
If we were to layer the current line of succession on the Watergate map, it would look like this:
- Attorney General: Eliot Richardson >
Jeff Sessions(RECUSED) >
- Deputy Attorney General William Ruckelhaus > Rod Rosenstein
- Solicitor General Robert Bork >
Associate Attorney General(VACANT)
- ———————————– > Solicitor General Noel Francisco
As you can see, if President Trump attempted a reprise of the Saturday Night Massacre, he would start by either firing Rosenstein or forcing him to resign. Next in line currently would be Noel Francisco. But if Trump can fill the associate attorney general position with someone as compliant as Robert Bork proved to be, he could succeed in having Robert Mueller fired.
The problem is, Trump cannot find anyone willing to take the job of associate attorney general. The Wall Street Journal skirts around the real issue here.
The Trump administration has put its search for the Justice Department’s No. 3 official on the back burner after failing to persuade several early candidates to take the challenging position, according to people familiar with the matter…
…Officials have informally approached at least three potential candidates for the post, including attorneys Helgi Walker and Kate Todd, who said they wouldn’t be interested in taking on the job right now, according to the people familiar with the matter. Both declined to comment…
…Mr. [Rod] Rosenstein lamented the glacial confirmation process during public appearances recently, saying, “It is a long runway for a job that lasts for only a few years.”
Nominees generally must set aside their law practices while they await a vote, potentially making the positions less desirable.
It’s true that the confirmation process has become brutal in general and would be particularly rough for someone seeking this position. It’s also true that taking a government job often involves a significant financial sacrifice. But the main reason no one wants the job is that it is generally understood that the position is really being used as a mechanism for sabotaging the Mueller investigation. Trump could not be more clear that he is livid that Sessions recused himself. He’s furious that Rosenstein appointed a special counsel. He knows that Rosenstein would resign rather than fire Mueller and that this would not solve his problem because he cannot rely on Francisco to do his bidding. He needs to fill the hole in the line of succession but he has failed to do so.
Of course, anyone who could be successfully confirmed would have to make the same promises that Elliot Richardson made to the Senate. But then they would have to break those promises.
It’s just not an attractive proposition.