Scenario III: The Recess Appointment Elephant in the Room
Of course, if the individual President Trump desires to serve as Sessions’ successor is Senate confirmable, then nothing would stop President Trump from simply nominating the successor and naming someone else as the short-term Acting Attorney General under the Vacancies Reform Act. But on the assumption that the confirmation of a new Attorney General would be conditioned by the Senate upon some promise of non-interference in the Russia investigation, it stands to reason that this option, while legally straightforward, may be off the table politically.
But now we come to the elephant in the room: President Trump’s power to “recess-appoint” Sessions’s successor. Article II, Section 2, Clause 3 of the U.S. Constitution empowers the President “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” And as the Supreme Court concluded three years ago in the Noel Canning case, “the Recess of the Senate” can include just about any formal recess that lasts 10 or more days, whether it’s an “inter-session” or “intra-session” recess. (Noel Canning also holds that the vacancy at issue need not arise during the recess, although both of these holdings were over the nominal dissents of four of the more conservative Justices.)
So if the Senate recesses for 10 days or more in August (which currently appears at least a decent likelihood), President Trump could simply recess appoint whoever he wants to serve as Attorney General until the end of the next Senate session (i.e., January 3, 2019). And that person would have the same authority as a Senate-confirmed Attorney General—which would likely include authority over the Special Counsel and the Russia investigation.
