With the Senate due to leave for its annual August recess, a possible path exists for Mr. Trump to use a
recess appointment clause to name a successor and circumvent the typical confirmation process. Although the Senate majority leader, Mitch McConnell, Republican of Kentucky, has decided to cut the break short, should it last at least 10 days, Mr. Trump would have constitutional authority to unilaterally fill any vacant position that normally requires Senate confirmation, which includes the post of attorney general.
That step would allow Mr. Trump to evade congressional demands that his pick make assurances about the Russia investigation as a condition of confirmation, said
Stephen Vladeck, a University of Texas at Austin law professor.
Under a recess appointment, an attorney general could stay in that role until January 2019 and would oversee the special counsel.
“The recess appointments clause would allow Trump, at least constitutionally, to put just about anybody into Sessions’s job, including someone who would have no qualms about firing the special counsel,” Mr. Vladeck said. “Then the question is not whether there would be any legal response — because that is perfectly within the president’s power — but whether that alienates congressional Republicans.”
Congressional Republicans could block such a move by refusing to let the Senate go into a lengthy recess. The Supreme Court
ruled in 2014 that a recess must be at least 10 days to prompt the president’s recess-appointment powers, and lawmakers of both parties, under the Bush and Obama administrations, have used their control of at least one chamber to block presidents from making such unilateral appointments.
That tactic involves sending a single senator into the otherwise empty chamber to bang the gavel every few days during a lengthy vacation, breaking up the long recess into a series of short ones — each too brief to trigger the president’s powers. The court’s 2014 ruling deemed such “pro forma” sessions to be real for the purpose of preventing recess appointments.
However, Congress has never done so when both chambers and the White House are controlled by the same party.
Mr. Trump could also simply let Mr. Rosenstein become acting attorney general until a successor was confirmed, or he could seek to temporarily fill the position with any other Senate-confirmed official from elsewhere in the government under the Vacancies Act.