Law & the Courts

Sessions Should Recuse Himself from Any Investigation into Russian Interference

Jeff Sessions speaks in front of a portrait of former U.S. President Andrew Jackson (Reuters: Kevin Lamarque)
He was not wrong to meet with the ambassador, but his presence in the debate does no one any good.

With the report out overnight that U.S. Attorney General Jeff Sessions met twice with the Russian ambassador while the presidential campaign was occurring last year, it is now clear that the ongoing investigation into possible Russian interference in that campaign should be conducted without Sessions having decision-making authority related to it.

I write this as one of Sessions’s most avid and longstanding advocates. I think it ludicrous that anyone could suggest that Sessions deliberately misled Senate Judiciary Committee members (much less perjured himself) when he told them that he had not met “with the Russians” as a representative of Donald Trump’s campaign. The context of the questioning was clear: It had to do with Trump’s campaign. And Sessions’s demeanor was light, not guarded, during the exchange. He actually went beyond the specific question to volunteer the information that he had not met with the Russians — something so readily able to be checked, if he were intending to hide his brief meetings with the ambassador as part of his duties on the Armed Services Committee, that only a fool would try to deny them. Sessions is no fool.

Nonetheless, the optics are bad. Out of context, the video clip repeatedly being shown by the media makes it look as if Sessions is saying he never met with any Russians last year at all. They make him look like a liar. And, in a political climate in which trust in the Justice Department has eroded for eight years, and in which polls show that clear majorities of Americans think the allegations of alleged Russian skullduggery merit serious investigation, the attorney general must go the extra mile to ensure not just that the investigation is run thoroughly and fairly but that the public has confidence that it is being done in such fashion. For the cause of public trust in our system of justice, appearances matter. For the sake of appearances, Sessions should recuse himself.

Now, what would such a recusal entail? This is not — repeat, emphatically, not – a call for a “special prosecutor.” Special prosecutors, hired for one and only one investigation, have every incentive to be overzealous, to try to get a scalp at all costs, to seek a conviction just to justify their existence. (At least, thank goodness, special prosecutors, unlike the horrid creatures known as “independent counsels,” are at least nominally answerable to the Justice Department chain of command — but in practice they still tend to be rogue agents, as the horrid Patrick Fitzgerald proved to be in his persecution of former vice-presidential chief of staff Scooter Libby.) 

Instead of appointing a special prosecutor, Sessions should just ensure that a talented, skilled prosecutor already within the department have direct oversight of the case and that ultimate decision-making authority for the case stop at a level just below the attorney general himself. It certainly would help if the White House and Senate quickly confirmed Trump’s nominee for deputy attorney general, Rod Rosenstein, and if the assistant deputies be nominated and confirmed quickly as well. Rosenstein has an excellent, well-merited reputation for probity and, unlike Sessions, is not seen as a political intimate of the new president.

In recusing himself, Sessions should state clearly and for the record that the recusal is absolutely not a bow to the weird notion that he should have nothing to do with any investigation that may ever arise regarding the Trump White House. That would be absurd. One reason the attorney general is appointed by the president is to ensure accountability, through the elected president, to the people. Our constitutional requirement for the Senate’s advice and consent on the nomination is supposed to ensure that only a man qualified for office, and of great integrity, will take the position in the first place. To say that the attorney general should never be involved with making decisions involving the White House is to remove democratic accountability and to undermine the constitutional design.

That said, in this particular case the recusal is warranted specifically because it does involve the Trump campaign, for which Sessions by his own admission served as a “surrogate.” When that consideration is combined with the unfortunate impression that Sessions was trying to hide something from the Senate when he testified that he didn’t meet with the Russians as part of the campaign, the conclusion should be obvious: Recusal in this one case would be wise.

Sessions is a man of deep integrity. Recusal, with a clear explanation of why he is doing so along with a firm explanation of why this recusal sets no precedent for future action, would serve not just to bolster confidence in the conduct of this investigation but also to reaffirm in the public mind the truth that Sessions is a man of rectitude and good judgment. What is required is not that Sessions “fall on his sword” but that he merely withdraw from this particular skirmish in recognition that his presence in the skirmish does nobody any good. Sessions is also a man of genuine humility (of the right sort), and this recusal would be very much in that character. Rosenstein, once confirmed, can oversee this case. Sessions has bigger, more important briefs on his own desk.

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