Soon after the raid of Michael Cohen’s office, home, and hotel room, I suggested that Attorney General Sessions now has a role in Trump-related DOJ investigations. This was my analysis:
[Sessions] recused himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” This covers the payment made by Cohen to Stormy Daniels during the campaign, even though Sessions almost certainly had no involvement in, or knowledge, of that payment.
But the recusal may not extend to other matters as to which the SDNY U.S. Attorney might be investigating Cohen. Indeed, Mueller himself concluded that these matters, whatever they are, fall outside the scope of his Russia-campaign investigation. This suggests that any non-Stormy matters for which Cohen is being targeted do, indeed, fall outside of Sessions’ recusal. If so, Sessions can involve himself.
Sessions apparently agrees. According to this report from Bloomberg, he has decided against recusing himself from the investigation into Michael Cohen, but will consider stepping back from specific questions tied to the probe.
The Bloomberg report implies that Sessions’ decision is motivated by the displeasure President Trump has expressed over the attorney general’s recusal from the Russia investigation. It ignores the fact that that decision does not entail a full recusal from the Cohen investigation. Nor does the Bloomberg report offer any reason why Sessions should fully recuse himself in this instance.
In fact, Sessions should not recuse himself. It’s his job to oversee, at least nominally, all criminal investigations conducted by the Department of Justice. There’s an exception for investigations that pertain to him, such as an investigation of Russian influence in a political campaign in which he served and in which he had contacts (albeit slight) with the Russian ambassador.
But that exception apparently doesn’t apply to much (or maybe any) of the investigation of Cohen. Thus, the premise of any claim that Sessions should fully recuse himself from this investigation appears to be that Sessions works for Trump and used to be his friend. However, the attorney general always works for the president, and presidents frequently appoint friends to the post (e.g., President Obama and Eric Holder; President Kennedy and his brother Robert, etc).
The real premise of an argument for recusal is that normal rules don’t apply to this president and his appointees — that they are not entitled to exercise the full power of their offices. Indeed, this is the premise of much of what the Resistance argues, including to the Supreme Court in the travel ban case.
It’s a profoundly anti-democratic argument — the kind one has come to expect from the modern American left.