Legal Experts Blast Charge Sessions Broke Recusal Pledge

Some liberals — and NeverTrump Republicans — see participation by Attorney General Jeff Sessions in the decision to fire FBI Director James Comey as a violation of his pledge to recuse himself from investigations of matters related to the 2016 presidential campaign.

Sessions made the announcement in March to step away from criminal investigations related to the election because he was a campaign surrogate for President Donald Trump. Critics now argue this means he could not evaluate Comey’s conduct broadly. Jennifer Rubin, who writes a blog for The Washington Post and has been a longtime critic of Trump, argued this week that Sessions “faces a host of serious, potentially career-ending questions.”

“He didn’t recuse himself from being attorney general. This has to do with the fitness of continuing in the job by one of his subordinates.”

Rubin quoted Norman Eisen, who served as then-President Barack Obama’s top ethics lawyer, as saying that Sessions is open to a bar complaint that could cost him his law license.

“The fact that he broke his recusal commitment, if he did, would be relevant context, and violating an agreement can sometimes in itself be an ethics violation,” he said.

Rubin also quoted liberal Harvard University law professor Laurence Tribe: “And part of the evidence supporting the charge of AG Sessions’ conscious involvement in that obstruction is the way in which he violated his public recusal commitment, something he cannot possibly have done in a fit of absent-mindedness.”

Laura Coates, a Georgetown University law professor and CNN legal analyst, said on the cable network Friday that Sessions needs to explain himself.

“What was the motivation of Jeff Sessions? He so far has not been able to provide that context,” she said. “Was it a wink and a nod, an elbow here? That’s what we need to know to get the full context.”

A number of legal experts, however, said it is preposterous to suggest that Sessions signed away his responsibility for supervising the FBI director.

“He didn’t recuse himself from being attorney general,” said Joseph diGenova, who was U.S. attorney for the District of Columbia under Ronald Reagan. “This has to do with the fitness of continuing in the job by one of his subordinates.”

DiGenova and others said the traditional meaning of a recusal is for an official to remove himself from decisions concerning a particular case. In the current example, it would mean that Sessions could speak to FBI agents or Justice Department lawyers working on an ongoing investigation into possible coordination between Russian agents and the Trump campaign. He could not participate in decisions such as whether to convene a grand jury or whether seek criminal charges.

Breaking that pledge “requires some specific meddling,” said Ken Boehm, chairman of the board of directors of the National Legal and Policy Center.

There is not a scintilla of evidence that Sessions has done anything of the sort. Andrew McCabe, who became acting FBI director after Trump fired Comey and was close to the ousted director, testified before the Senate Intelligence Committee this week that he never has spoken to Sessions about the Russia investigation.

William Otis, who served in the White House Counsel’s Office during George H.W. Bush’s administration, said not only did Sessions have the right to make a recommendation about Comey, he had a duty to do so.

“Think of what the criticisms on the Left would be if Jeff Sessions just sat in his chair and looked out the window while the question was brewing about whether to retain the FBI director,” he said.

Otis noted that the deputy attorney general, Rod Rosenstein, authored the memo that recommended Comey’s dismissal. The memo citied Comey’s conduct during the investigation of former Secretary of State Hillary Clinton’s handling of classified information and made no mention of the Russia investigation.

“It wasn’t Sessions who wrote the memo,” Otis said. “It was Rosenstein.”

Trump muddied the waters by referencing the Russia investigation in his letter dismissing Comey. The president claimed the FBI director had assured him he was not a target of the investigation. Trump later told NBC anchor Lester Holt that he had made up his mind to fire Comey before even consulting with the Justice Department.

Given those circumstances, could Sessions have crossed the line if he knew Trump wanted Comey fired in order to try to shut down the Russia probe? DiGenova said this hypothetical is far beyond what the facts have established.

“That’s utter speculation and useless in that situation,” he said.

Boehm, whose Virginia-based organization promotes ethics in government, said hiring or firing an FBI director has no impact on the agency’s investigations. Comey, he said, was not personally gathering evidence related to Russian election interference.

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Boehm pointed to testimony by McCabe, who told senators that the investigation has been unimpeded by Comey’s firing and that there has been no effort to interfere with it. He noted that McCabe likely will be in the job only a matter of days since the Trump administration is interviewing other candidates to be interim director.

McCabe has no incentive to lie to protect the president, Boehm said.

“If anybody had any animus toward Trump, it’s this guy,” he said.

Boehm added that Comey himself sent a letter to FBI personnel stating, “I have long believed that a President can fire an FBI director for any reason, or for no reason at all.”

Said Boehm: “That kind of knocks the planks out from that argument, but nobody wants to look at those things … It’s grasping at straws.”