Constitution Daily

Smart conversation from the National Constitution Center

Jeff Sessions’ removal rare but not without precedent

November 7, 2018 by Scott Bomboy

 

On Wednesday, President Donald Trump asked for the resignation of Jeff Sessions, effectively firing his own Attorney General, in a rare move not without precedent.

Matthew Whitaker, Sessions’ former Chief of Staff, will take over as acting Attorney General until President Trump’s replacement for Sessions is approved by the Senate. Sessions’ removal or resignation has been the subject of speculation since 2017, when Trump complained publicly about Sessions.

While it is not unusual for an Attorney General to leave service during a President’s term, it is rare for one to leave at the President’s request.

President Harry Truman asked for and received the resignation of his Attorney General, Howard McGrath, in 1952. McGrath, Truman’s former campaign manager, had fired a special investigator looking into problems at the Justice Department without consulting Truman.

In March 1924, Harry M. Daugherty, President Warren Harding’s Attorney General, resigned in the wake of the Teapot Dome scandal at the request of President Calvin Coolidge.

President Ulysses Grant called for the resignation of Ebenezer Hoar in 1870 to bring in an Attorney General with southern roots, Amos Akerman. But then Grant requested Akerman’s resignation 13 months later. Both men complied with Grant’s request.

Attorney Generals also have left office under unusual circumstances. In 2007, Alberto Gonzalez resigned from the Bush administration after the firings of U.S. attorneys allegedly for political reasons.

Attorney General John Crittenden quit President John Tyler’s cabinet in 1841 in a conflict over Tyler’s refusal to pursue a pro-Whig political agenda. Another Attorney General, Henry Stanbery, quit in 1868 to serve as Andrew Johnson’s impeachment trial attorney.

And in 1974, Elliot Richardson resigned when asked by President Richard Nixon to fire Watergate special prosecutor Archibald Cox. Richardson refused to fire Cox

One thing that is not up for debate is President Trump’s ability to ask for an Attorney General’s resignation.

In the Constitution’s Article II, Section 2, the President has the ability to fill executive offices under the Appointments Clause, which reads that “he shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

In 1789, James Madison made it clear the President also should have the ability to fire Cabinet officials that he nominated to office. Madison added language to a bill that created the Department of Foreign Affairs that allowed the President to fire the Secretary of State, if needed.

And in 1926, Supreme Court Chief Justice William Howard Taft said in Myers v. United States that “the President has the exclusive authority to remove executive branch officials.” Subsequent court decisions narrowed this power somewhat for certain officials outside of the Cabinet. But few people doubt today that a President can remove a Cabinet officer.

Scott Bomboy is editor in chief of the National Constitution Center.

 

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