Attorney General Sessions’s Recusal Was Unnecessary

National Review ^ | June 13, 2017 | Andrew C. McCarthy

[Meet the New Boss]

I have argued that Attorney General Jeff Sessions’s recusal from the so-called Russia investigation was a mistake. The attorney general’s testimony before the Senate Intelligence Committee on Tuesday afternoon bolstered this conclusion. Sessions says that he recused himself, on the advice of career ethics experts at the Justice Department, because he thought this was required by the federal regulation controlling “Disqualification arising from personal or political relationship” (28 CFR Sec. 45.2). But judging from the public testimony that former FBI director James Comey has given about the investigation into Russia’s election-meddling, the regulation did not mandate recusal.

Section 45.2 states that an official is disqualified from “a criminal investigation or prosecution” if he has a personal or political relationship with a “subject of the investigation or prosecution,” or with a person or organization whose interests would be affected by the outcome “of the investigation or prosecution.”

The probe of Russia’s interference in the 2016 presidential campaign is not a criminal investigation or prosecution.

snip

But barring that highly unusual situation, counterintelligence investigations should not trigger disqualification or recusal of an attorney general unless and until the investigation turns up incriminating evidence that could form the basis for a criminal investigation — and a possible prosecution.

snip

Based on what has been reported, the Russia investigation has turned up potentially incriminating evidence involving Michael Flynn, President Trump’s original national-security adviser... Attorney General Sessions would certainly have had to recuse himself from the criminal investigation of Flynn, with whom he had a political relationship in the Trump campaign and the formation of Trump’s administration.

Nonetheless, it was unnecessary for Sessions to recuse himself from the broader counterintelligence investigation. It is not a criminal inquiry, and Regulation 45.2 explicitly applies only to criminal investigation or prosecution.

[Meet the New Boss]

I think Sessions painted himself into a corner back in his confirmation hearing when he made promises about recusing himself.

So under McCarthy's reasoning, if Sessions were to resign and is replaced by someone who was not a Trump campaign advisor, presumably that would eliminate the conflict of interest Sessions claims exists which created the need for a Special Counsel in the first place.

But something tells me even if Sessions were to resign that Mueller would refuse to resign and Rosenstein would refuse to dismiss him.

Is Rosenstein hoping to be rewarded someday with a Supreme Court appointment by President Mike Pence or President Kamala Harris?

I think Sessions was an excellent choice for Attorney General apart from the recusal.

[Meet the New Boss]

It would be interesting to get Andy McCarthy’s take on the issue raised in this thread

http://www.freerepublic.com/focus/f-news/3560542/posts

being that if the DOJ claims in its regulations to have vested Mueller with all the power of a US Attorney, then why isn’t the Special Counsel required to be approved by the Senate as the law requires for all US Attorneys?

After all, the Special Counsel in substance is a US Attorney and one would think the DOJ cannot evade the requirement for Senate approval simply by giving him a different title.

Isn’t the appointment of a de facto US Attorney invalid without that Senate approval?

[heights]

Sessions being a weakling led to Mueller, and today to compound his insanity, he said NOTHING about the conflit of interest regarding Comey/Mueller.

[eastforker]

I understand that neither her mother or father were US citizens when she was born, so, we shall see.

[sargon]

Based on what has been reported, the Russia investigation has turned up potentially incriminating evidence involving Michael Flynn, President Trump’s original national-security adviser.

Orly?

Let's see it then...

[Meet the New Boss]

I believe she is a member of the Ruling Class so therefore that constitutional requirement does not apply to her under contemporary American jurisprudence.

[Attention Surplus Disorder]

I view his recusal as “a courtesy”. Ironic, I know, because it’s a courtesy to the party who is giving not the slightest courtesy to anyone affiliated with Trump. Arguably it may have been a mistake. A minor one, IMO.

It’s not 1/100th of the mistake that allowing Mueller to head whatever it is he’s heading, however. “Special Investigator”, “special counsel”. Whatever title or term is correct. Nobody really caught this, except for a few scant voices when Mueller was first appointed. But there was no secret about the buddy-buddy relationship between Mueller & Comey and it should have been detected and rejected early on. IMO.

His appointment, I am now convinced, will turn into a complete nightmare. And once again, a gaggle of people who have committed very serious crimes will walk away unscathed into the night. Comey, for one. Loretta Lynch, for two. And IMO, the entire unmasking investigation will be shoved off the road into the ditch and the damage to be done will be done in the form of the American people losing tremendous faith in the judicial system, perhaps all of their remaining faith. Because it’s already in a badly debilitated state with the Clinton walk.

I hope I am wrong. But we have all seen this movie before.

[Meet the New Boss]

>>His appointment, I am now convinced, will turn into a complete nightmare.

I’m about where you are. Very pessimistic.

http://www.freerepublic.com/focus/news/3560647/posts?page=10#10

[Gene Eric]

I find it hard to believe that Trump & Sessions have not considered the consequences of their decisions.

[Dragonspirit]

Republicans are always trying to play by these gentlemen rules with scoundrels.

[Electric Graffiti]

I don’t care what McCarthy thinks about anything...He’s a moron neverTrumper.

Sessions needs to get rid of mueller and rosenstein before he resigns himself or better yet commits seppuku.

[MadMax, the Grinning Reaper]

FOUND AN OLD FR article you should read and send around.

“The FBI’s Identity Cris”, Townhall.com, April 22, 2015, Rachel Marsden, http://freerepublic.com/focus/f-news/3282054/posts

A real criticism about Comey and his involvement in US foreign affairs, terrorism, Poland, and North Korea.

Definitely fits Clint Eastwood’s admonition “A man’s got to know his limitations”.

Spread it around, please!

[Cowboy Bob]

Kamala came off yesterday as a shrill harpy. She can read from a piece of paper... but how is she on her feet? Can she speak without notes...or is she another Obama when he is without a teleprompter?

[Meet the New Boss]

you read it here first:

1. Mueller will step down as Special Counsel in light of his close friendship with Comey

2. Rosenstein appoints as his replacement — Loretta Lynch!

[JohnyBoy]

>I find it hard to believe that Trump & Sessions have not considered the consequences of their decisions.

I heard rumors that Trump begged Sessions not to recuse himself. Sessions is like Ned Stark: too honorable for DC and it’s going to kill the republic.

[Cboldt]

The answer to your question lies in the distinction between "officer" and "inferior officer."

Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

US Const. Art. II, Sec. 2

The source of the requirement for Senate approval of US Attorneys is 28 USC 541. The source of authority citied for appointing the Special Counsel includes 28 USC 509, 510 and 515; which are general grants of power from Congress to the Attorney General.

There is a bit of litigation on the subject, including Supreme Court cases. I would have to read all of it and more to see if the issue you raise ever surfaced, that is, if Congress felt its toes were being stepped on, but to the best of my knowledge, the argument you raise represents a non-issue.

[JIM O]

Since it is now obvious to all people with any active brain activity that Sessions is a true patriot and no conflict exists, he should immediately rescind his recusal

[Cboldt]

The OP is a good example of either "strange logic" by Andrew McCarthy, or bad choice of headline.

The argument McCarthy is advancing is that there is no criminal prosecution to recuse from (and hence the legal justification for appointment of a SP under the regulations is missing), which is materially different from the question of whether or not the recusal regulation applies to Sessions.

There is in fact one or more investigation. Recusal applies to investigation, as well as to bringing a criminal prosecution before the courts.

McCarthy should direct his criticism to Rosenstein - and I would still disagree vigorously with McCarthy, but on practical/political basis, not legal analysis.

[Alberta's Child]

Section 45.2 states that an official is disqualified from "a criminal investigation or prosecution" if he has a personal or political relationship with a "subject of the investigation or prosecution," or with a person or organization whose interests would be affected by the outcome "of the investigation or prosecution."

McCarthy misses the point here.

Sessions would have been obligated to recuse himself if he knew that the investigation is likely to be a criminal case. The FBI doesn't announce criminal investigations, and McCarthy doesn't know what the U.S. Department of Justice is actually investigating right now.

Many of the subpoenas that have been given out by Congress are targeting people who were likely involved in the unmasking and leaking of the identities of targets in the Obama surveillance of the Trump campaign. This information would clearly indicate the possibility that senior people in the Obama administration are potential targets of criminal investigations.

I have suspected all along that Sessions recused himself because he knows he was a target of the Obama administration's illegal surveillance -- and as a victim and potential witness in the case he could not possibly serve in a prosecutorial role.

[Cboldt]

One more thought. I see the so-called "Russia investigation" as two investigations.

There is the generic "Russia meddled in US elections" counterintelligence investigation. McCarthy seems to assume that Sessions has recused himself from that. I doubt that conclusion is true, which makes McCarthy's article a non sequitur.

There are in fact specific cases directed to persons in the Trump primary and general presidential election campaigns. Sessions has recused from those (read the recusal letter) and ONLY from those (read his testimony on why firing Comey was not a breach of his recusal).