He should never have done so. Neither the facts nor the law required his recusal. It was a grievous mistake that relegated the attorney general to a meaningless bystander to events that threatened to overtake the new administration. It also angered President Trump, who felt Sessions should have stood firm in the face of unwarranted criticism instead of backing down.
Trump was correct in his assessment. He was entirely justified in his displeasure and frustration. Sessions had deceived his boss by concealing his intent to recuse himself from the federal investigation into Russia’s meddling in the 2016 election and any connections between the Trump campaign and Moscow.
By his own admission during a Senate Intelligence Committee hearing in June 2017, Sessions began setting his recusal in motion within hours after being sworn in as attorney general on February 9.48 On his first full day as AG, he stated that he immediately met with Justice Department officials to discuss stepping aside from the case and took preliminary steps to do so. Trump apparently had no idea this was going on behind closed doors at the DOJ. Here is part of Sessions’ testimony:
I basically recused myself the first day I got into the office because I never accessed files, I never learned the names of investigators, I never met with them, I never asked for any documentation.49
Clearly, Sessions was considering disqualifying himself well before he took the oath of office. It was not something that 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. The next day, Sessions began his recusal, but did not make it official or public until three weeks later.
Failing to disclose such a material matter to the president was a serious betrayal. Perhaps the former senator from Alabama was so desperate for the job that 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 neglecting to disclose such a material matter was somehow inconsequential. It was not.
Trump was disgusted and angry when he learned of the recusal. At a news conference in the Rose Garden he vented:
I am disappointed in the attorney general. He should not have recused himself almost immediately after he took office. And if he was going to recuse himself, he should have told me prior to taking office, and I would have quite simply picked somebody else. So, I think that’s a bad thing not for the president, but for the presidency. I think it’s unfair to the presidency.50
While it was unconventional, if not unprecedented, for a sitting president to publicly disparage his attorney general, Trump was right. He was entitled to know the truth, but Sessions actively hid it from him. He deserved an attorney general who, at the outset, was forthright about his intentions, not someone who was concealing his plan to step aside from a major investigation that would surely impact the new administration. In so doing, the attorney general “sandbagged” the president. Sessions’s deception also deprived him of Trump’s confidence and trust which are essential to the job of attorney general. This ethical impropriety rendered Sessions unfit to serve.
But for Sessions’s deceit, it is unlikely that a special counsel would have been appointed. Instead, Sessions’s replacement in the Russia case, acting attorney general Rod Rosenstein, took it upon himself to appoint Robert Mueller to preside over the probe. This played neatly into the scheme admittedly devised by fired FBI director James Comey, who just happened to be Mueller’s close friend and long-time professional ally. This will be explored in the next section of this chapter.
Sessions told the Senate Intelligence Committee he was “required” to recuse himself under the Code of Federal Regulations, 28 CFR 45.2.51 However, this was an incorrect reading of the rules. The language of this section offers broad latitude and discretion for Sessions to have remained involved. The ethical standard is a subjective one. Moreover, a strict reading of the regulations does not cover a matter like the Russia probe as it existed at the time of his recusal.
When Sessions was sworn in, the FBI’s examination of Russian meddling was officially a counterintelligence case, not a criminal investigation, according to Comey’s sworn testimony.52 It is a critical distinction. Here is how the regulation reads, in relevant part:
No employee shall 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
Any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.53
The operative words in the regulation are “investigation or prosecution.” At the moment of Sessions’s recusal, neither of these two conditions were present. If the bureau’s investigation had, in fact, been criminal when Sessions took office, then, arguably, he might have been correct in recusing himself. But it was not.
At roughly the same time the attorney general disqualified himself, FBI director James Comey told the House Intelligence Committee that the investigation into Russian meddling was a “counterintelligence” case which involved information gathered by law enforcement to protect against espionage.54 Significantly, the case had not advanced to the stage of an official criminal probe, much less a prosecution, as the recusal regulation prescribes.
Former federal prosecutor Andrew McCarthy published two excellent columns explaining the distinction and then concluded as follows:
Counterintelligence investigations should not trigger disqualification or recusal of an attorney general unless and until the investigation turns up incriminating evidence that could form the basis for a criminal investigation—and a possible prosecution.
It was unnecessary for Sessions to recuse himself from the broader counterintelligence investigation. It is not a criminal inquiry, and Regulation 45.2 explicitly applies only to criminal investigation or prosecution.55
McCarthy’s point was that Sessions relied on a recusal rule that applied to an altogether different kind of investigation, not the one taking place when the attorney general mistakenly disqualified himself. Assuming Comey’s description of the case to Congress was accurate, there was no evidence of criminality connected to the Trump campaign and, thus, no need for Sessions to have removed himself, as McCarthy explained.
What about Flynn, who had been questioned by the FBI and fired by Trump? This had nothing to do with Russia’s interference in the election and no correlation to activities of the Trump campaign. It was triggered by the FBI’s and DOJ’s misapplication of the Logan Act, as noted earlier, seemingly unconnected to a counterintelligence probe by the bureau. Sessions might have been compelled to recuse himself from the Flynn investigation, but there was no requirement that he step aside from a counterintelligence investigation related to Russia.
When Sessions consulted officials at the Justice Department the day he arrived, he may well have been misled by those Obama holdovers who had been running the department for the last eight years. Were their recommendations that he disqualify himself influenced by their political convictions? Quite possible. It is also conceivable that they did not bother to apprise themselves of the true nature of the FBI’s investigation. Had they done so, they would have realized that a counterintelligence matter in no way required disqualification of the attorney general under the relevant regulation.
Sessions’s contacts with Kislyak were negligible. Their only meaningful discussion during the election occurred when Sessions was acting in his official capacity as a U.S. senator, not as a surrogate of the Trump campaign. He insisted they never spoke about the election. Why then did he feel compelled to recuse himself from a matter involving Russia’s interference in the election? If he answered all questions truthfully in his confirmation hearing and was, therefore, uninvolved in any alleged “collusion” with
the Russian ambassador, there was no valid reason for him to disqualify himself from overseeing the FBI’s counterintelligence probe. Instead, Sessions capitulated to the demands by Democrats (and some Republicans) for his removal which were based on misrepresentations of their meeting. Sessions unwittingly played neatly into the hands of Trump’s political adversaries.
The attorney general recused himself from a case that, by legal definition, did not involve a crime that can be found anywhere in America’s criminal codes. Indeed, there was no criminal investigation at the time he disqualified himself. Did he not read the statutory law? Did he not comprehend the recusal regulation he cited? What prosecutor removes himself from a criminal investigation that might not happen and based on a law that does not exist? Sessions reacted incorrectly to a politically driven narrative that had no support in the law.
Other attorneys general have presided over investigations involving potential crimes within their administrations. Attorney General Loretta Lynch, for example, oversaw the FBI’s criminal investigation of Hillary Clinton in its entirety. Even when her involvement was revealed in the infamous tarmac meeting with Bill Clinton, she did not recuse herself. Instead, she said she would accept the recommendations of the FBI. In her testimony before the House Judiciary Committee, she admitted that she was the person who “made the decision” not to charge Clinton with any crimes.56
If ever there was an instance in which an attorney general should have recused herself under Regulation 45.2, it was the Clinton case. Yet Lynch declined to do so despite her private and personal contact with the husband of the subject of the investigation. By comparison, Sessions had no known contact with anyone suspected of being involved in Russian meddling in the 2016 campaign. Yet, he recused himself in the confused or misguided belief that he was required to do so. Lynch was obligated under the law, but Sessions was not.
Sessions can be legitimately criticized for a variety of failures. He resisted producing documents involving the anti-Trump dossier which were subpoenaed by the House Intelligence Committee. He spent months ignoring pleas from members of Congress to reopen the case against Hillary Clinton for likely violations of the Espionage Act in the use of her private email server, obstruction of justice for destroying more than 30,000 emails under congressional subpoena, and potential self-dealing for profit through her foundation. His efforts to investigate the unmasking of Trump aides during intelligence surveillance by the Obama administration appeared less than vigorous. His reluctance to investigate the possible criminal conduct of James Comey is baffling, given substantial evidence that the fired FBI director may have falsely testified before Congress, stolen government documents, and leaked them to the media. Of course, contorting the law to clear Clinton was deserving of its own investigation.
Sessions may have been a decent United States senator. But in his first year in office, he proved to be an ineffectual feckless attorney general whose only real achievement seemed to be alienating the president. Amid Trump’s public denunciations of Sessions, he offered a letter of resignation which was, regrettably, not accepted by the commander in chief.57 Trump was right when he said that choosing Sessions as attorney general was one of the “worst” decisions he had made.58
Among Sessions’s many mistakes, recusing himself from the Russia investigation had the most serious consequences for the Trump presidency and the country. Had he maintained his authority over the matter, it is doubtful that a special counsel would ever have been appointed. And Comey’s manipulations upon being fired would have been the subject of an appropriate investigation by someone other than the department’s inspector general who has no jurisdiction to compel Comey and other departed FBI agents to answer questions or produce documents.
The Firing of James Comey
James Comey should have been fired the day he held a very public news conference in July 2016 announcing his recommendation that Hillary Clinton not be criminally prosecuted for mishandling classified information and jeopardizing national security. He acted without authorization and in dereliction of his duty to follow the policies and regulations established by both the FBI and the Department of Justice. In so doing, he demeaned the work of the agency he led, damaged the integrity of the nation’s premier law enforcement agency, and breached the public’s trust.
In various congressional appearances, Comey offered a variety of excuses for why he thought extraordinary circumstances demanded him to engage in extralegal actions.59 But none of them justified violating the fundamental rule of law as Comey did.
Within two weeks after the U.S. Senate confirmed Rod Rosenstein as deputy attorney general, he authored a report that recommended to the president that Comey be fired. The FBI director reports directly to the deputy AG. So, in that context, President Trump acted expeditiously in accepting Rosenstein’s counsel.
The president appeared to think this move would be treated as a win-win. Over the previous year, both parties had accused Comey of incompetence, grandstanding, and attempting to sway the presidential election one way or the other. This early in his tenure, President Trump still underestimated the Democrats’ fecklessness.
Democrats, of course, were quick to condemn the president for discharging Comey. Many of them were the same politicians who denounced the director in late October 2016 for abusing his authority and unduly influencing the election when he sent a letter to congressional leaders briefly reopening the Clinton case only days before the election. But in Washington, hypocrisy is endemic and memories are fleeting.
However, the greatest hysteria over Comey’s firing emanated from the media. Comparisons to Richard Nixon’s infamous “Saturday Night Massacre” abounded, with accusations that Trump used the bungled Clinton case as an excuse for firing Comey and that the president’s true purpose was to quash the Trump-Russia probe. This demonstrated that most talking heads know little about presidential history and how FBI investigations work. The director’s departure did not stop the bureau’s ongoing probe into Russian meddling and any alleged “collusion.” It was Comey who was dismissed, not the career professionals at the agency. The counterintelligence case continued and so, too, did Congressional investigations into the same matter. They did not miss a beat. But the media frenzy advanced unabated because so many who occupy newsrooms across America harbor unabashed contempt for Trump and his unconventional approach to governing.
Comey’s lack of integrity and defiance of rules and principles of law were his downfall. His unchecked ambition and desire to thrust himself into the public limelight only exacerbated his mistakes of judgment and deed.
Rosenstein’s scathing critique of how Comey abused his authority, usurped the power of the attorney general, and broke FBI/DOJ rules is worth reviewing:
I cannot defend the Director’s handling of the conclusion of the investigation of Secretary Clinton’s emails, and I do not understand his refusal to accept the nearly universal judgment that he was mistaken. Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.
My perspective on these issues is shared by former Attorneys General and Deputy Attorneys General from different eras and both political parties.60
In his three-page summary, Rosenstein detailed multiple acts of misconduct by Comey. The FBI director took it upon himself to assume the powers and duties of the attorney general in deciding the Clinton case and chose to announce his findings, without notice to the Justice Department, in a nationwide news conference. This was in clear contravention of regulations that restrict certain conduct by FBI employees. As Rosenstein noted, “the FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department. The Director announced his own conclusions about the nation’s most sensitive criminal investigation, without the authorization of duly appointed Justice Department leaders.”61
Comey should have determined whether there was evidence to justify prosecution, then turned the matter over to f
ederal prosecutors to decide whether an indictment of Clinton was warranted. Rosenstein cited the opinions of six former top Justice Department officials who all agreed. Comey’s obstinate refusal to admit his errors only reinforced the need to fire him. In a stinging rebuke, Rosenstein added, “The FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them.”62 Hence, Comey was canned for reasons that were entirely justified, an apoplectic media and howling Democrats notwithstanding.
Almost immediately, demands for impeachment of President Trump were heard in the corridors of Congress. The liberal media were crazed with excitement over the prospect that the president had obstructed justice in trying to block the Russian investigation. In truth and in law, neither scenarios were remotely rational.
Chapter 10
Obstruction of Justice
Men are more often bribed by their loyalties and ambitions than by money.
—JUSTICE ROBERT H. JACKSON, UNITED STATES V. WUNDERLICH, 342 U.S. 98 (1951)
There is nothing wrong with ambition. But ambition without character or principles is what turns good men into bad men. They well know right from wrong, but are too willing to hide the truth in favor of advancing their own designs. Their loyalty is to themselves alone.
It is, therefore, ironic that James Comey, the fired FBI director, penned a tome entitled A Higher Loyalty: Truth, Lies, and Leadership.
The real truth is that Comey’s unchecked ambition is what led to his demise. It is the classic story of how power corrupts.
Comey took it upon himself to decide Hillary Clinton’s fate in the email scandal that bedeviled her 2016 presidential campaign. He presumptuously exceeded his authority, mangled the rule of law, and arrogated partisanship over principles. His superiors at the Department of Justice eventually condemned his actions.
The Russia Hoax Page 20