RUTHFULLY YOURS

My heart is with the Wall Street Journal’s editorial board, which last night published an editorial defending Attorney General Jeff Sessions’s decision to recuse himself from the so-called Russia investigation. Unfortunately, my head cannot go along because the editors miss important points.

Preliminarily, the Journal addresses an aspect of President Trump’s unseemly public critique of his AG that has bothered me, too. Trump has said that if Sessions had informed the White House that he’d recuse himself from the Russia investigation, Trump would have nominated someone else for AG. The Journal counters that “the contours” of the investigation were not clear to Sessions until he started on the job in February.

I’m not sure I buy that — at least not completely. The FBI, CIA, and NSA released the non-classified public version of their report in early January. They indicated that there was an ongoing investigation of Russia’s interference in the election, and they spelled out the agencies’ theory that Putin had been trying to help the Trump campaign. Given that Sessions was a key figure in the Trump campaign and was about to take a position in which the FBI would answer to him, there were enough red flags to raise the prospect of a conflict situation.

Still, regardless of Sessions’s state of knowledge about the investigation, Trump was briefed on it in detail by the agency heads. Why should anyone assume it was incumbent on Sessions to raise any conflict-of-interest concerns? Trump was better informed on the matter. If, in nominating an AG, it was important to the incoming president to know the nominee’s position on disqualification, it was incumbent on Trump (or someone on the staff vetting nominations) to raise the issue. Obviously, we don’t know what discussions took place between the president-elect and his AG nominee. Assuming they failed to discuss this topic of great importance to Trump, however, I fail to see how that is Sessions’s fault — or at least, solely or principally Sessions’s fault.

Now, to the main point. 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.

In defending Sessions’s blind eye to this distinction, the Journal’s editors assert:

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 [the FBI’s then-director James] 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.

This is wrongheaded. To take on the snark first, it is not a matter of being a “legal sage.” It was Sessions who cited a legal regulation as the basis for his recusal. It doesn’t require sagacity to point out that the regulation doesn’t say what he claims it says.

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.

If the Journal is right that we should ignore the distinction between criminal and counterintelligence investigations in conflict-of-interest situations, then there is no more justification for objecting to the boundless warrant Mueller has been given than to the broad sweep of Sessions’s recusal. I doubt that the Journal’s editors are comfortable with the limitless jurisdiction of the special-counsel investigation.