U.S. Attorney General Jeff Sessions assured the Senate Judiciary Committee at his confirmation hearings in January that he is dedicated to fairness, impartiality and the rule of law. Sessions has been in office for a mere two weeks and his promises are already being put to the test.
News broke last week that counterintelligence agents from the Federal Bureau of Investigation are examining alleged contacts between Russian officials and Donald Trump campaign and transition advisors and business associates. On Thursday, all of the Democrats on the Senate Judiciary Committee sent AG Sessions a letter requesting his recusal from the Justice Department’s investigation. On Friday, two dozen nonprofits also called on the attorney general to step aside from any inquiry into ties between Russia and the Trump campaign and transition, including any secondary investigation into leaks about the FBI probe.
The Senate Democrats and the nonprofits argued that Sessions was himself an advisor to the president's campaign and has close ties to Trump and to former National Security Advisor Michael Flynn, who resigned after misinforming the vice president about his conversations with a Russian official during the transition. Because of those relationships, according to recusal advocates, Sessions cannot be regarded as an impartial arbiter.
“You endorsed and served as a principal advisor to President Trump during his campaign and have continued to play a key role advising the Trump administration,” the nonprofits said in their letter to the AG. “That relationship precludes any possibility of avoiding the appearance of a conflict of interest.”
Recusal demands can be a valuable political tool, as Sessions, a former senator from Alabama, well knows. During the Obama administration, it was Republicans, including Sessions, who demanded the recusal of Democratic AGs. Remember the Republican stink over AG Loretta Lynch’s Phoenix tarmac meeting with Bill Clinton while the FBI was investigating Hillary Clinton’s use of a private email server as secretary of State? Lynch’s predecessor, Eric Holder, also took heat from Republicans when the Justice Department began investigating reports that the Internal Revenue Service had targeted conservative groups for audit. (Lynch said she would accept the FBI’s determination on Clinton’s emails; Holder recused himself in the IRS investigation and a couple of other investigations of the administration or of his former clients.)
Sessions, in other words, might be tempted to dismiss the Democrats’ request that he step aside as sheer partisanship. And even if he does abide by his pledge to the Senate Judiciary Committee to consult with Justice Department ethics officials when his impartiality might reasonably be questioned, he doesn't have to explain himself. AGs' recusal decisions "are shrouded in mystery, often not made public and the reasoning left to the imagination,” according to a report last month by the Project on Government Oversight (POGO).
In the short term, the attorney general answers only to the president and to Congress. If Sessions decides not to step aside from the Justice Department’s investigation of alleged Russian contacts with the Trump campaign, it seems unlikely that the Trump administration or the Republican Congress will clamor for Sessions to change his mind. (I asked the Justice Department to respond to the Senate Democrats’ letter requesting the AG’s recusal and to describe the recusal consideration process; DOJ spokesman Peter Carr said in an email that the department was “reviewing the letter” and had no additional comment.)
After talking to three law professors who specialize in prosecutorial ethics, I think there’s a strong case for Sessions to recuse. The professors – David Sklansky of Stanford, Bruce Green of Fordham and Kathleen Clark of Washington University – gave three overlapping reasons why: history, current regulations and public faith in the integrity of the Justice Department.
The POGO recusal report details the ugly history of conflicted AGs, culminating with President Richard Nixon ordering then Deputy Attorney General Richard Kleindienst to drop an antitrust investigation into ITT, a Nixon campaign contributor. In Senate testimony, Kleindienst denied he had been pressured by the president. After Nixon’s clandestine tape recordings proved otherwise, the AG ended up pleading guilty to the misdemeanor of refusing to testify before Congress.
Nixon’s presidency, of course, led Congress to enact a law allowing for the appointment of independent counsel to investigate high-ranking government officials. Two different versions of the independent counsel statute were in place from 1978 until 1994, when the second iteration expired.
Were the independent counsel statute still operative, said Fordham professor Green, there is little doubt that Sessions would have referred the investigation of alleged Russian contacts with the Trump campaign team to a special panel of judges tasked with the deciding whether to appoint a prosecutor from outside of the Justice Department. “This would have been easy back in the day,” said Green.
Sessions’ potential conflict - serving as a member of Trump’s cabinet while leading an investigation that could involve presidential advisors – is exactly why there was an independent counsel law, Green said. Prosecutors do not like to step aside from the jobs they’re empowered to do, Green said. The old law took the decision out of the AG’s hands.
Green said his reading of federal ethics regulations would require Sessions at least to consult with ethics experts at the Justice Department. Professor Clark at Wash U said the regulations are clearer than that: The rules, she said, demand Sessions step aside.
The key rule (found in Title 28 of the U.S. Code) on disqualifying federal prosecutors bars them from participating in a criminal investigation if they have “a personal or political relationship” with someone involved in the conduct under investigation or with someone who will be directly affected by the outcome of the inquiry. According to Clark, Sessions might plausibly have argued that the rule did not preclude his involvement of an FBI investigation into Russian hacking or interference in the presidential campaign.
But once the FBI reportedly expanded its inquiry into alleged Russian contacts with Trump campaign advisors, Clark said, the rule gives Sessions no choice but to recuse himself. A provision of the ethics rule says prosecutors may stay involved if supervisors determine they do not have a conflict of interest, but, according to Clark, that provision does not apply to the attorney general because AGs do not have supervisors. “Any counterargument has to be on the merits of the regulation,” she said. “Generally, these standards are pretty well thought through.”
Stanford professor Sklansky, a former federal prosecutor, said Sessions’ involvement in any Justice Department investigation of Trump’s campaign will cast doubt on the inquiry. (He has also written about Sessions and recusal at Stanford’s Legal Aggregate blog.) Given the AG’s prominent role in President Trump’s campaign, Sklansky said, Sessions may appear to have a conflict of interest, regardless of how impartial he may consider himself to be. “The standard is never, ‘Do you trust yourself?’” Sklansky said. Nor can Sessions refuse to step aside if the AG believes there is no merit to allegations of Russian contacts, the Stanford prof said: “The rule is not that if you think you are in the right, you don’t recuse.”
Undoubtedly, Sessions is in an unenviable spot. Independent prosecutors have a tendency to lead investigations into unexpected terrain, which is the main reason Congress let the law lapse. If the AG appoints a special prosecutor to oversee a Trump campaign probe, as Green and Sklansky suggest, he risks making his president vulnerable. But if Sessions doesn’t recuse, he faces blowback from Democrats and other Trump detractors and could leave lingering doubts about any probe that clears Trump confidantes.
But in the AG’s opening statement to the Senate Judiciary Committee, he said he intended to set an example for Justice Department employees. “No matter what politician might call, or what powerful special interest, influential contributor or friend might try to intervene,” he said. “The message must be clear: Everyone is expected to do their duty.” I believe Sessions’ duty to his department and his president is to avoid any appearance of conflict in the Justice Department’s investigation of alleged Russian contacts.
The AG said he has faith in the system. Let's hope he shows it.