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Does Sessions Have to Recuse Himself on Russia Investigations?

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This question will come up soon. Helen Klein Murillo writes at Lawfare:

The Russian Connection gravitational vortex continues to pull at the new administration, fed almost daily by new allegations and reporting. Reuters reported over the weekend on three separate FBI probes into Russian interference in the election, including the counterintelligence investigation potentially implicating the Trump campaign. Not to be outdone, yesterday, the New York Times, the Washington Post, and the Wall Street Journal all weighed in with additional reports of questionable activities and ties between Trump associates and Russia.

One legal issue looming in the background is the appropriate role of Attorney General Jeff Sessions in ongoing investigations.

Sessions served as the chairman of the Trump campaign’s national security advisory committee. His close affiliation with Trump and the campaign, and the potential conflicts of interest that creates, has led members of Congress and the public to call for his recusal.

The Michael Flynn investigation serves to highlight the Attorney General’s conflicts issue. The Washington Post reported late last week that former-National Security Adviser and top military adviser to the Trump campaign Michael Flynn may have lied to the FBI during an investigation of his calls with the Russian ambassador. Although it isn’t clear Flynn was intentionally misleading the FBI, and the FBI is not expected to recommend charges, the Department of Justice will have to decide whether to bring charges under 18 U.S.C. § 1001, which makes it a felony to lie about a fact material to the course of a federal investigation.

Meanwhile, President Trump’s assertion at last week’s press conference that he has directed the Attorney General to investigate administration leaks potentially worsens the perception that the Attorney General lacks independence.

All this raises the stakes of and pressure for recusal on investigations related to President Trump and Russia generally. So what are the Attorney General’s legal recusal obligations, and how might those obligations be enforced?

The Law of Recusal

Under 28 U.S.C. § 528, the Attorney General “shall promulgate rules and regulations which require the disqualification of any officer or employee of the Department of Justice . . . from participation in a particular investigation or prosecution if such participation may result in a personal, financial, or political conflict of interest, or the appearance thereof.” So the statute requires recusal where an actual or apparent conflict exists, but leaves it to the Attorney General to promulgate regulations with more detailed criteria for assessing such conflicts. And as with many conflict of interest provisions, the law makes clear that even an appearance of such a conflict is legally problematic.

The operative DOJ regulation is at 28 C.F.R. § 45.2 (a section titled “Disqualification arising from personal or political relationship”). Under the regulation, “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with” either “any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution” or “any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”

The regulation defines “political relationship” as “a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof.” So as a principal adviser to Donald Trump’s campaign, Sessions seems to fall squarely into the provision, even if you ignore the very real possibility that Sessions himself might have an interest in the outcome.

What’s critical is that the ethics laws here protect faith in our institutions by centering on even the appearance of conflicts. The analysis is not whether one thinks Attorney General Sessions personally can compartmentalize his past allegiance to the Trump campaign and dispassionately conduct the investigation. The regulation’s exemption provision requires a finding not only that the employee can be impartial, but also that “the employee’s participation would not create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution.” Whatever one thinks of Sessions’s personal probity, it seems clear that his involvement in an investigation of the Trump campaign might cause a reasonable observer to question the investigation’s integrity. During his confirmation hearings, Sessions himself acknowledged the importance of the mere appearance of conflict when he indicated that he would recuse himself from any investigations into Secretary Clinton’s email because comments that he made during the campaign “could place [his] objectivity in question.”

All that said, this is a legal obligation with no practical legal enforcement mechanism. Agency ethics regulations are enforced by means of disciplinary proceedings at DOJ. As the head of the agency, Sessions isn’t likely to discipline himself for violating the regulation. And the regulation in question specifies that it “pertains to agency management and is not intended to create rights enforceable by private individuals and organizations.” So nobody outside is either.

Furthermore, these aren’t criminal laws. The primary criminal ethics law implicating recusal is 18 U.S.C. § 208, which prohibits an official’s participating in a matter in which the individual (or someone with whom the individual has a particular relationship) has a financial interest. The charge here isn’t that Sessions has a financial interest in the outcome, but rather that he has a personal and political conflict.

Political, Not Legal, Enforcement

As with many obligations, the real constraints here aren’t statutory or regulatory. They’re political.

We’ve seen the political enforcement mechanisms at work in . . .

Continue reading.

Written by LeisureGuy

21 February 2017 at 12:21 am

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