By Dan Calabrese ——Bio and Archives--August 2, 2017
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After Watergate in 1978, Congress passed a law requiring “the disqualification of any officer or employee of the Department of Justice, including a United States attorney or a member of such attorney’s staff, from participation in a particular investigation or prosecution if such participation may result in a personal, financial, or political conflict of interest, or the appearance thereof.” The Justice Department implemented this language with rule 28 CFR Sec. 45.2. This bars employees from probes if they have a personal or political relationship with “any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution” or which they know “has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.” This language didn’t apply to Mr. Sessions during his confirmation process because he didn’t know the contours of the FBI and Justice investigation. But the AG soon learned after he arrived at Main Justice in February that the investigation included individuals associated with the Trump presidential campaign. Mr. Sessions had worked on the campaign, and he clearly had personal and political relationships with probable subjects of the investigation. These included former National Security Adviser Michael Flynn, former campaign manager Paul Manafort, and potentially others. James Comey publicly confirmed this on March 20 when he told the House Intelligence Committee that the FBI “as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination.”
Some legal sages say this means Mr. Sessions did not have to recuse himself because this was a “counterintelligence,” not a criminal, probe. But you have to be credulous to think Mr. Comey would ignore potential crimes if he found them in the course of counterintelligence work. Mr. Sessions might have become a subject of the probe because of his meetings with the Russian ambassador. The AG had no way of knowing where the investigation would lead, and the ethical considerations were serious as the post-Watergate statute makes clear. During his confirmation hearing in January, Mr. Sessions had promised that “if a specific matter arose where I believed my impartiality might reasonably be questioned, I would consult with Department ethics officials regarding the most appropriate way to proceed.” Mr. Sessions fulfilled that promise, and on March 2 he announced that he’d recuse himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States” based on the advice of senior career Justice officials. Imagine the media storm if word leaked that Mr. Sessions had ignored his department’s ethics officials.Now, this sounds on the surface like a solid legal argument. If Sessions really had a conflict of interest as defined by statutory law, how could he not recuse? But McCarthy, a former federal prosecutor, knows these laws well, and he explains that Sessions's citation of the statute doesn't actually support the action he took:
As I recounted in yesterday’s column, Sessions expressly based his recusal on Section 45.2 of Title 28, Code of Federal Regulations. But that provision does not support his recusal. It says disqualification is necessary only if there is a criminal investigation or prosecution for which a prosecutor has a conflict of interest. The Russia investigation is not a criminal investigation; it is a counterintelligence investigation, which, for the reasons I outlined in the column, is saliently different from a criminal investigation. . . . The Journal doesn’t try to defend Sessions’s erroneous reading. The editors instead counter that the distinction between criminal and counterintelligence investigations is irrelevant here because one would have to be “credulous” to think the FBI would ignore crimes uncovered while doing counterintelligence work. It is a jejune observation under the circumstances: Comey explicitly stated, in the March 20 congressional testimony the Journal cites, that the FBI would make an assessment about whether any crimes had been committed — something that happens in every counterintelligence probe, as I explained yesterday. So it’s not a matter of being “credulous.” Of course Comey would not have ignored criminal evidence. The point is that Sessions could have complied with the regulation by (a) refusing to recuse himself from the broad Russia counterintelligence probe but (b) agreeing to recuse himself from specific criminal investigations or prosecutions, if any, that arose out of any criminal evidence uncovered in the counterintelligence probe. That way, as I argued in the column, his recusal would have awaited concrete criminal allegations and would have narrowly covered only those investigations and prosecutions. Instead, the AG’s recusal was both premature and sweeping. As a result, he appears not to have weighed in on the Comey testimony we are discussing — the testimony in which Comey publicly announced the investigation (against law-enforcement protocols), created the misimpression that Trump was under investigation, and led to his own dismissal — which, in turn, led to the appointment of Robert Mueller as special counsel. I continue to believe that if Sessions had not sweepingly recused himself from anything to do with the Russia investigation, he would have enforced Justice Department protocols by directing Comey not to make that public announcement — the announcement that set into motion the dominoes’ falling.
No sensible critic is saying that Sessions should never have recused himself under any circumstances. That seems to be Trump’s contention, and the Journal is right to refute it. But my point is that the timing and breadth of the AG’s recusal were ill considered. His disqualification should have been limited to specific investigations and prosecutions of specified criminal transactions. That is what the regulation he cited calls for. This is where the Journal misses the most significant point. The standards for an AG’s recusal mirror those for the appointment of a special counsel. A special counsel is supposed to be appointed only if the AG and, more broadly, the Justice Department have a conflict with respect to a criminal investigation or prosecution. The Justice Department is supposed to spell out the factual basis for the criminal investigation or prosecution in limiting the special counsel’s jurisdiction. Yet, in appointing Mueller, Deputy Attorney General Rod Rosenstein ignored these requirements. Mueller was thus assigned to take over the amorphous Russia investigation. Consequently, his jurisdiction is not limited to investigating specified crimes. He is free to take the inquiry wherever he chooses, operating in secrecy under the cover of a classified counterintelligence probe.Because Sessions gave away any power to oversee the probe, he ended up with no ability to prevent it from becoming a meandering fishing expedition in search of a way to justify itself. And Sessions's decision to offer a full recusal was like punting on first down. He could have waited to see if the investigation turned up any criminal matters that would put him in a conflict-of-interest position, and if so he could have recused himself from that isolated aspect of the investigation.
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