Jeff Sessions: The open questions

After Paul posted “It’s John Bolton’s turn,” I wrote to him to express my disagreement with the method and substance of his argument. Each of us speaks for himself on Power Line; Paul let me know that he has disagreed with me on occasion and let it ride without feeling compelled to take it up with me. If I wanted to pursue my disagreement with him, Paul encouraged me to air it publicly on the site. Earlier this week Paul responded to a point I had made in my message in “Should Jeff Sessions have agreed to be attorney general?.” I want to pursue my disagreement here in a respectful spirit of inquiry and trust that the intelligent reader can sort out the issues for himself.

In the Bolton post Paul seemed to me to rely on loaded language to make his case. He objected to conservatives who “demonize” Bolton. “Demonizing” anyone but a demon is wrong by definition (although Paul adds that it would be right to demonize Bolton if he’s lying). Paul didn’t identify any conservative who had “demonized” Bolton or specify the criticism he deemed to be “demonization.”

Fred Fleitz published a notable column at Fox News that criticized Bolton for seeking to publish his new memoir before the election. He argued that publication of the book now constituted a betrayal of trust. He urged Bolton to withdraw the book from publication. Fleitz is a long-time colleague and friend of Bolton. Indeed, he served as Bolton’s chief of staff at the NSC. I thought Fleitz’s criticism was correct and, indeed, unanswerable. I thought it should at least be taken into account.

Because Paul didn’t address any critic or argument specifically, it wasn’t clear to me whether he was familiar with Fleitz’s column. Paul asserted that publication of such books during the first term of a presidency is common practice, but he didn’t cite any such books. Fleitz argues that it is unprecedented. Fleitz contrasts Bolton’s new memoir with the publication of Robert Gates’s memoir during the second term of the Obama presidency.

Paul also criticized Trump for his disparagement of Jeff Sessions during his tenure as attorney general. Paul again resorted to loaded language for the argument in this part of his Bolton post. He wrote that Trump wanted Sessions to be his consigliere. Again, by definition, that would be wrong. However, I wouldn’t put it that way. I would say that Trump wanted (and deserved) an attorney general who could do his job in the most important matter of the Trump presidency by far, as William Barr is now doing. Barr is no consigliere, yet Trump seems to be happy with his service as attorney general.

Paul also adopted Sessions’s assertion that he couldn’t “ethically” perform his job in the Russia hoax. If so, I thought Sessions shouldn’t have taken the job or should have resigned. Then again, President Trump should immediately have asked for Sessions’s resignation, but the Russia hoax was an overwhelming problem that he didn’t want to exacerbate. I can understand Trump’s deferring the termination of Sessions. He had a lot on his plate.

In his Sessions post Paul has sketched out what would he believes would have ensued following Sessions’s resignation. This is alternate history that, while well informed, is speculative.

More of interest to me is Paul’s assertion that Sessions’s recusal was “ethically” obligatory. Paul’s argument takes it as a given that Sessions was in fact required as a matter of legal ethics to recuse himself from all investigations deriving from Russia’s involvement in the 2016 election. I don’t think this assumption is well founded. Indeed, based on what is publicly known, I think it may well be mistaken.

The realm of “legal ethics” is not self-explanatory. The term is to some extent an oxymoron. It is in any event governed by a professional code and related rules. What is professionally “ethical” in a given case is determined by reference to the code or related rules.

The Crossfire Hurricane counterintelligence investigation was in the news before the election. At the time Sessions was nominated, at the time of his confirmation hearing, and at the time he was sworn in, the investigation was ongoing. Insofar as the Trump administration was concerned, I think it was by far the most significant matter under the jurisdiction of the Department of Justice. It should have been obvious to Sessions from very early on that he would have to deal with it. Why did he recuse himself?

Sessions recused himself on March 2, 2017. His public statement on recusal is posted here. In relevant part Sessions stated:

During the course of the confirmation proceedings on my nomination to be Attorney General, I advised the Senate Judiciary Committee that “[i]f 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.” During the course of the last several weeks, I have met with the relevant senior career Department officials to discuss whether I should recuse myself from any matters arising from the campaigns for President of the United States. Having concluded those meetings today, I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

This statement is entirely unenlightening. Indeed, it is mystifying. Sessions elaborated further on the recusal issue in testimony before the Senate Intelligence Committee on June 13, 2017, reported here by Business Insider. In his testimony Sessions insisted that he had recused himself from DoJ investigations concerning Russian interference and possible Russian collusion with Trump’s campaign because of a department rule. “I recused myself, not because of any asserted wrongdoing, or any belief that I may have been involved in any wrongdoing in the campaign,” Sessions said, “but because a Department of Justice regulation … I felt, required it.”

Sessions cited 28 CFR 45.2. The rule provides that DoJ employees may not “participate in a criminal investigation or prosecution if he has 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 who would be directly affected by the outcome.” By its terms, however, the rule applies only to criminal investigations. It doesn’t apply to counterintelligence investigations.

It is not clear to me why Sessions did what he did, or why he didn’t resign when he came to the conclusion that he was required to recuse himself from performing such a significant part of his job. As I say above, I think he should have.

Perhaps I am missing something. Sessions’s personal counsel as attorney general was the prominent Washington lawyer Chuck Cooper. I posed these questions to Mr. Cooper by email:

1. Was Mr. Sessions briefed on or made aware of the FBI’s Crossfire Hurricane counterintelligence investigation at the time of his recusal?

2. What DoJ rules or advice suggested that recusal was advisable or required in connection with a counterintelligence investigation?

3. If he was not made aware of [Crossfire Hurrican] prior to the recusal, does he feel that he had adequate information on which to formulate his recusal decision?

I received no response of any kind to my message posing these questions.

Having received no response from Mr. Cooper, I sought guidance from Andrew McCarthy. Andy is the author of Ball of Collusion and a lawyer who has deep familiarity with the issues. Andy graciously responded to my message and confirmed the substance of my inquiries:

As you know, I’ve always thought the recusal was premature and overbroad. The rule does not require recusal from a counterintelligence investigation. I think Sessions should have said he understood there was a potential conflict, and that he would decide recusal on a case-by-case basis if DOJ developed any criminal cases. Then, he could have recused from Flynn and Manafort/Gates prosecutions as those cases came up, without recusing from all matters conceivably relating to Russia and the 2016 campaign.

I don’t doubt that Sessions got advice for sweeping recusal from the same people who were signing off on the preposterous Carter Page FISA warrants. But it was up to him to question that advice. To my mind, the rule he explicitly cited, by its own straightforward terms, did not require recusal. But we’d have to know what was said between Sessions and DoJ’s vaunted ethics experts in order to understand what happened — which, of course, is what you’re trying to do.

Paul’s posts raise important questions that I believe at least to some extent remain open. I hope I have addressed them fairly here.

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