Wall Street Journal Edortirial Board Says
By The Editorial Board
July 26, 2017 7:18 p.m. ET
President Trump lashed out again Wednesday at Jeff Sessions, and his fury over the Attorney General’s recusal from the Russia campaign-meddling probe may take the President down a self-destructive path. So this is a good moment to explain why Mr. Sessions felt obliged to recuse himself and why it was proper to do so.
Mr. Trump seems to think Mr. Sessions recused himself in March due to a failure of political nerve after news broke that he had met with the Russian ambassador during the 2016 campaign. Mr. Sessions did recuse himself shortly after that story broke, and the AG didn’t help by forgetting to report those meetings during his confirmation hearing.
But Mr. Sessions and his advisers had been considering recusal long before that story broke—and for reasons rooted in law and Justice Department policy.
After Watergate in 1978, Congress passed a law requiring “the disqualification of any officer or employee of the Department of Justice, including a United States attorney or a member of such attorney’s staff, 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.”
The Justice Department implemented this language with rule 28 CFR Sec. 45.2. This bars employees from probes if they have a personal or political relationship with “any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution” or which they know “has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”
This language didn’t apply to Mr. Sessions during his confirmation process because he didn’t know the contours of the FBI and Justice investigation. But the AG soon learned after he arrived at Main Justice in February that the investigation included individuals associated with the Trump presidential campaign.
Mr. Sessions had worked on the campaign, and he clearly had personal and political relationships with probable subjects of the investigation. These included former National Security Adviser Michael Flynn, former campaign manager Paul Manafort, and potentially others.
James Comey publicly confirmed this on March 20 when he told the House Intelligence Committee that the FBI “as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination.”
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 Mr. 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.
The AG had no way of knowing where the investigation would lead, and the ethical considerations were serious as the post-Watergate statute makes clear. During his confirmation hearing in January, Mr. Sessions had promised that “if a specific matter arose where I believed my impartiality might reasonably be questioned, I would consult with Department ethics officials regarding the most appropriate way to proceed.”
Mr. Sessions fulfilled that promise, and on March 2 he announced that he’d recuse himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States” based on the advice of senior career Justice officials. Imagine the media storm if word leaked that Mr. Sessions had ignored his department’s ethics officials.
Mr. Sessions’s recusal helped Mr. Trump for a time by eliminating an easy conflict-of-interest target for Democrats. The calls for a special prosecutor died down. They only erupted again in May after Mr. Trump fired Mr. Comey and tweeted his phony threat that there might be White House tapes.
We understand Mr. Trump’s anger at special counsel Robert Mueller’s open-ended Russia probe, and Deputy AG Rod Rosenstein made a mistake in appointing Mr. Mueller, who is close to Mr. Comey and part of the FBI fraternity. Mr. Rosenstein should have selected a more disinterested special counsel, and even now the Mr. Rosenstein should insist that Mr. Mueller investigate Clinton campaign contacts with the Russians, as our colleague Holman Jenkins Jr. has argued.
But Mr. Trump will only compound the problem now if he fires Mr. Sessions and appoints a replacement who fires Mr. Mueller. He will cause multiple resignations and bipartisan talk of impeachment. Mr. Sessions acted honorably in recusing himself, and the President should let him do his job without harassment.
Appeared in the July 27, 2017, print edition.