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.