by Norman Eisen · March 3, 2017
Jeff Sessions didn’t go far enough.
Attorney General Jeff Sessions announced on Thursday that he is recusing himself from “any existing or future investigations of any matters related in any way to the campaigns for president of the United States.”
Good for him. But it’s not enough.
Sessions’ announcement, which came after the revelation that he held several conversations with Russian Ambassador Sergey Kislyak during the 2016 campaign without disclosing those meetings to Congress, was a step the attorney general should have taken weeks ago, as we explained in a letter along with a bipartisan collection of two dozen other groups and individuals on Feb. 17.
The question remains, however, whether even with this recusal, we can have confidence that all of the relevant investigations—not just the ones from which Sessions has recused himself—are being conducted to the high standards of independence and professionalism the American people rightfully demand from the Department of Justice.
Without more than Sessions’ narrow recusals, we cannot. This DOJ should follow the example of earlier ones, including in the administrations of Bill Clinton and George W. Bush, and appoint a special counsel to conduct the investigations. Only with an independent prosecutor exercising the full authority of the attorney general can we be sure that the truth will become known and the interests of the American people protected.
When most people think of an independent prosecutor, they recall what became known as the “Whitewater” investigation. In that case, an independent panel of judges selected an outside individual to act as prosecutor at the attorney general’s request. However, the legal authority under which that investigation was conducted—the independent counsel statute—expired in 1999. So, all decisions about appointing counsel to handle particular cases now rest with attorney general (or if he is recused, his deputy).
The DOJ has regulations that govern how and when these appointments should be made. They provide that the attorney general or the acting attorney general can appoint an outside special counsel if he or she determines that it would be in the public interest, and that not doing so “would present a conflict of interest for the department or other extraordinary circumstances.” The regulations contain some limitations on the authority of the special counsel, including that the attorney general can limit the special counsel’s jurisdiction to a certain matter and can override a particular action if the attorney general finds that it is “so inappropriate or unwarranted under established departmental practices that it should not be pursued.” In other words, there are ample tools for DOJ to ensure that a special counsel review does not become the “witch hunt” that President Donald Trump fears.
That said, it is important here that the investigation be strictly independent, which may require additional measures. For example, in 2003, Attorney General John Ashcroft recused himself from the investigation of alleged unauthorized disclosure of the identity of a CIA employee. Because Ashcroft recused, then-Deputy Attorney General James Comey (now director of the FBI) had authority over the matter; Comey in turn appointed a special prosecutor, then-United States Attorney Patrick Fitzgerald, to handle it. Comey initially appointed Fitzgerald under the special counsel regulations, but later felt the need to give him even more independence than the regulations provide. So Comey extended Fitzgerald’s authority in a pair of letters, one in 2003 and again in 2004.
As to the matters from which Sessions has recused himself, the “acting attorney general” is Dana Boente, the current acting deputy attorney general. Boente is a career DOJ lawyer appointed by President Barack Obama in 2005 as United States attorney for the Eastern District of Virginia. President Trump’s nominee for the permanent post of deputy attorney general, Rod Rosenstein, has not yet been confirmed by the Senate. His hearing is coming up next week, and it should be a doozy.
The public needs to have confidence that any investigation into various Trump administration officials’ contacts with Russian officials is being carried out vigorously and fairly. Unfortunately, public and private comments by the respective heads of the House and Senate intelligence committee suggest they have already prejudged the results. As for Sessions, he has recused himself only from matters involving the 2016 election, which would presumably include any Russian attempts to meddle in the outcome; but as the attorney general himself emphasized, his recusal relates to matters investigating the presidential campaign. However, as recent revelations demonstrate, the Trump team’s Russian connections reportedly continued into the transition, and more investigation may push the timeline even further. It is certainly not a crime to meet with Russian officials. But the public has the right to know if any of these conversations crossed the line by, for example, relating to alleged Russian hacking or other intrusions upon our election processes.
Because of this, Attorney General Sessions and Acting Deputy Attorney General Boente should follow the example set by Ashcroft and Comey before them and appoint a special counsel to handle matters relating to all questions surrounding Russian officials’ actions relating to the 2016 presidential election, and also to questions about how that influence effort may have continued past the campaign, and indeed may continue to this day. As then-Special Counsel Patrick Fitzgerald said, “the truth is the engine of our judicial system.” It is also the only way to ensure that the government is serving the best interests of the American people—and only the American people.