The Case For Jeff Sessions’ Recusal From DOJ Russia Investigations

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Publish Date:
February 21, 2017
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Reuters
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Summary

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.

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.

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.

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