The Parameters of Attorney General Sessions’s Recusal

Attorney General Jeff Sessions is slated to testify this afternoon before the Senate Intelligence Committee. The hearing is being teed up as the attorney general’s response to former FBI director James Comey’s testimony before the same panel last week.

One important aspect of the hearing is sure to be an effort to define the nature and extent of Sessions’ recusal from involvement in the so-called Russian investigation.

The attorney general’s decision in this regard is clearly among the most consequential of the Trump administration’s first months. As I opined at the time, it was a mistake. Prosecutors should recuse themselves from matters in which their participation would create an appearance of impropriety. The problem with the Russia investigation is that it is not a matter with clear parameters. It is not a criminal investigation or prosecution; it is instead a counterintelligence investigation related to Russia’s interference in the 2016 presidential election. Because such an investigation is designed to gather information not to build a prosecution, it lacks the definitiveness the criminal case, which focuses on whether a defined factual transaction constitutes a violation of penal law.

Thus, not only was a clear basis for Sessions’s recusal lacking. It was inevitable that there would be disputes about the parameters of the recusal.

In point of fact, the word “Russia” does not appear in Sessions’ statement outlining his recusal.  The attorney general stated on March 2: “I have decided to recuse use myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

This is significant. As time passes, we tend to remember recusal decision through the prism of a Senate hearing in late February. In questioning by Senator Al Franken (D., Minn.), Sessions was asked about contacts with Russian officials. Franken set up his questions by referring to a dossier about then-candidate Trump that had been compiled by a former British spy for purposes of opposition research. The dossier contains lurid allegations about Trump’s activities in Russia. Those allegations have never been verified, which is why media outlets had declined to report on the dossier, despite having had it for months.

News of it was just breaking when Franken used it to question Sessions, who was clearly unfamiliar with it and taken aback by Franken’s description of it. When Sessions testified that he had not had contact with Russians, it was clearly in the context of these salacious escapades, from which he was plainly trying to distance himself. He did not mean that he had never met with Russians, but the testimony could certainly be read that way. The testimony was thus inaccurate, but the claim by some Democrats that it amounted to perjury was specious.