It is unconventional, if
not unprecedented, for a sitting president to publicly disparage his attorney
general after a mere five months on the job.
Nevertheless, is
President Trump justified in his displeasure and frustration with Jeff
Sessions? Let’s examine the facts.
"If he was going to
recuse himself, he should have told me prior to taking office, and I would have
picked somebody else,” Trump
said at a Rose Garden news conference. “It’s a bad thing not just for
the president, but also for the presidency. I think it’s unfair to the
presidency.”
Trump’s point is this:
Sessions concealed his intent to recuse himself from the federal investigation
into possible connections between the Trump campaign and Russia. In so
doing, the attorney general effectively “sandbagged” the president.
Perhaps the former
senator from Alabama was so desperate for the job, he did not care that his
recusal might undermine the presidency of the man who nominated him to be the
nation’s chief law enforcement officer. Or maybe Sessions was naïve in
convincing himself that failing to disclose such a material matter was somehow
inconsequential. It was not.
By his own admission
during a Senate Intelligence Committee hearing in June, Sessions began setting
his recusal in motion within hours after being sworn-in as attorney general on
Feb. 9. On his first full day as AG, Sessions immediately met with
Justice Department officials to discuss stepping aside from the investigation.
A month later, on March 2, he made his recusal official.
Clearly, Sessions was
considering disqualifying himself well before he took the oath of office. It
was not something that simply dawned on him the moment he raised his right hand
in the Oval Office ceremony. And there stood the president, expecting his new
attorney general to serve the nation fully and honestly. In retrospect, it was
a significant and deliberate deception by Sessions.
On this basis alone,
President Trump would be justified in firing him. In the alternative, Sessions
could choose to resign. Either way, it is apparent from Trump’s recent remarks
that he is more than “disappointed” in his attorney general. He has lost
confidence in Sessions.
One can legitimately
debate whether Sessions was required to recuse himself. Under the law
(28 CFR 45.2), there is sufficient latitude and discretion for Sessions to have
remained involved in the Russia investigation. The legal standard is a
subjective one. One person’s interpretation of the language is invariably
different than another person’s judgment.
Regardless, President
Trump was entitled to know the truth. He deserved an attorney general who, at
the outset, was forthright about his intentions, not someone who was hiding his
plan to step aside from a major investigation that would surely impact the new
administration.
But for Sessions’ deceit, it is unlikely that a special counsel
would have been appointed. Instead, Sessions’ replacement in the Russia case,
Acting Attorney General Rod Rosenstein, took it upon himself to appoint Robert
Mueller to preside over the probe… which played neatly into the scheme
admittedly devised by fired FBI Director James Comey, who just happens to be
Mueller’s close friend and long-time professional ally.
If there was ever a
conflict of interest that demanded recusal under the special counsel law (28
CFR 600.7), it is Mueller’s relationship to his protégé, Comey. The
regulations, codified into law, specifically require Mueller to step down if he
has a “personal relationship with any person substantially involved in the
investigation or prosecution.” It then defines personal relationship
as a “friendship…normally viewed as likely to induce partiality” (28 CFR
45.2). The current conflict is so conspicuous, there may as well be a photo of
Mueller and Comey accompanying the rule.
Yet Mueller continues to
ignore the law. And Rosenstein has shown no inclination toward limiting the
special counsel’s investigation which seems to have morphed into matters well
beyond the scope of his original directive.
Rosenstein, himself, is
also hopelessly conflicted because he authored the memo that led to Comey’s
firing which is reportedly being examined by Mueller as possible obstruction of
justice. As Mueller’s boss, it is inconceivable that Rosenstein could serve in
the capacity of both prosecutor and witness without turning the entire case
into a charade of conflicts. President Trump expressed it more succinctly when
he tweeted, “I am being investigated for firing the FBI Director by the man
who told me to fire the FBI Director!”
However, all this could
change if Sessions were to leave the Justice Department. President Trump could
then name a new acting attorney general who would not only replace Sessions,
but assume oversight over Mueller’s investigation, pushing aside Rosenstein.
Who might the president
choose? Harvard Law professor Laurence Tribe predicts that Associate Attorney
General Rachel Brand would get the job, although her name has been bandied
about in the media for more than a month. Already confirmed by the Senate as third
in command, the respected lawyer could take over the helm at Justice and
properly confine Mueller’s probe to its expressed directive: “any links
and/or coordination between the Russian government and individuals associated
with the campaign of President Donald Trump”. If he strays, she could
rein him in.
Under the special
counsel law, Mueller would be required to consult directly with Brand and
explain the course of his investigation. If any of his actions are determined
by Brand to be “so inappropriate or unwarranted that it should not be
pursued,” she could stop him. If he persists, she would then be
authorized to discipline or remove Mueller for “misconduct, dereliction of
duty, incapacity, conflict of interest, or for other good cause, including
violation of Departmental policies” (28 CFR 600.7-d).
Or, Brand could simply
decide that Mueller’s existing conflict of interest, as noted above, is now so
pronounced that it compromises the integrity of the overall investigation. For
this reason alone, she could dismiss the special counsel and select someone
else who is fair, impartial and devoid of the kind of bias that has rendered
Mueller and his investigation inherently suspect.
For now, President Trump
seems to be escalating the pressure on Jeff Sessions to resign. At the
same time, the president is mounting a public case that Robert Mueller is the
wrong person to serve as special counsel.
Both arguments have
merit. If they prevail, it could dramatically alter the president’s fortunes.
Gregg Jarrett is a Fox
News Anchor and former defense attorney.
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