Sessions’ Recusal and Rosenstein’s Appointment of a Special Counsel—Both Were Legally Required

President Donald Trump made 5,001 false or misleading claims, as of Sept. 12, 2018, according to a running tally kept by the Washington Post. This included an astonishing 79 such claims on one day alone: July 5, 2018.

A number of these false and misleading statements involve Trump’s repeated attacks on Special Counsel Robert Mueller’s Russia investigation, part of Trump’s desperate attempt to delegitimize the investigation.

We want to interrogate more closely two of these claims because of their continuing  importance. First, Trump has repeatedly attacked Attorney General Jeff Sessions for recusing himself from overseeing the Russia investigation. He has even asked Sessions to reverse his recusal. Second, Trump has also claimed that the Mueller investigation is “an illegal investigation” and that “there never should have been a special counsel.”

As a matter of law, the president is wrong on both counts.

Sessions was legally required to recuse himself from overseeing the Russia investigation. It wasn’t his choice to make; it was legally mandated. So too, the appointment of a special counsel to lead the Russia investigation was not illegal; it also was required by law.

With Friday’s news that former Trump Campaign Chairman Paul Manafort has entered a plea bargain and is cooperating with the government, the president is surely feeling even more frustration and concern about where the Mueller investigation is headed. This could lead to further attacks on his usual punching bags: Sessions and Mueller. But since the Sessions recusal and Mueller appointment both happened in the spring of 2017, well over a year ago, it is worth revisiting the legal issues involved in these pivotal actions to understand just how much smoke Trump is blowing at the American people.

AG Sessions’ Recusal Was Legally Required

There is no question that Justice Department regulations clearly required Sessions to recuse himself from the Russia investigation. The Justice Department recusal regulations state:

(a) …. no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:

(1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or

(2) 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.

The regulation further defines the term “political relationship” to mean “a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof.”

The role played by Sessions in the 2016 presidential campaign made clear that he was required to recuse himself from the Justice Department’s investigation into Russian interference in the 2016 election. When he failed to do so promptly, he was subject to widespread public criticism for that failure.

On February 27, 2017, Democracy 21, a nonpartisan watchdog organization, filed a complaint with the Justice Department’s Office of Professional Responsibility calling on the Office to promptly investigate and take appropriate action regarding Sessions’ failure to recuse himself from DOJ’s ongoing Russian interference investigation.

On March 2, 2017, Sessions recused himself from the Russian investigation, saying he did so after consulting with Justice Department officials. Thereafter, Deputy Attorney General Rod Rosenstein assumed control of the investigation as the next most senior DOJ official.

When Sessions recused himself from the Russia investigation, there was a substantial public record that demonstrated the close personal and political relationship between Sessions and Trump, the Trump campaign, Trump’s campaign staff and Trump’s associates, many of whom were subjects of the ongoing investigation into Russian interference in the election. This record included:

● Sessions was the first senator to endorse then-candidate Trump in February 2016. In fact, he was the only senator to endorse him up until Trump clinched the Republican nomination in the summer of 2016.

● Sessions was chosen to formally nominate Trump as the Republican candidate for the presidency at the Republican National Convention.

● Sessions participated in at least nine Trump campaign rallies and attended at least 45 campaign events. He also made numerous press appearances for the Trump campaign and was considered a surrogate for him.

● According to numerous press reports, Sessions had a critical role in the campaign:

ο “A source close to the campaign [said] Trump only truly consults one person, Alabama Republican senator Jeff Sessions: ‘When Jeff Sessions calls, Trump listens.’”

ο President Trump’s Chief Strategist, Stephen Bannon, told The Washington Post that Sessions was “‘the clearinghouse for policy and philosophy’ in Trump’s administration, saying he and [the Attorney General] are at the center of Trump’s ‘pro-America movement’ and the global nationalist phenomenon. ‘Throughout the campaign, Sessions has been the fiercest, most dedicated, and most loyal promoter in Congress of Trump’s agenda…’”

ο Manafort, President Trump’s campaign manager during part of 2016, told the press that Sessions had become a “very close personal friend and adviser” to Trump.

ο “‘Sessions brings heft to the president’s gut instincts,’ said Roger Stone, a longtime Trump adviser. He compared Sessions to John Mitchell, who was attorney general under Richard M. Nixon but served a more intimate role as a counselor to the president on just about everything.”

● According to press reports, Sessions continued to play a critical role in the transition after the election:

ο “Sessions became a daily presence at Trump Tower in New York, mapping out the policy agenda and making personnel decisions.”

ο The Post went on to report that Sessions “lobbied for a ‘shock-and-awe’ period of executive action that would rattle Congress, impress Trump’s base, and catch his critics unaware, according to two officials involved in the transition planning.”

● After Trump stated he would nominate then-Senator Sessions to be attorney general, Sessions appeared at a post-election rally for him. At that rally, Sessions told the crowd that the Trump campaign was “more than a normal campaign, but a movement,” and he thanked Trump for “the opportunity to participate in a movement that I believe can help make America great again.”

● Several of the attorney general’s former employees and individuals with whom he has  personal relationships worked at that time at the White House.  Then White House Deputy Chief of Staff Rick Dearborn worked for Sessions as his Senate chief of staff. Stephen Miller, then and now senior adviser to the president, worked as Sessions’ communications director. According to press reports, Sessions also had  a long-standing relationship with Cliff Sims, who at that time directed  the White House’s message strategy.

Cumulatively, these examples overwhelmingly demonstrate that Sessions had a “close identification with an elected official … or a campaign organization, arising from service as a principal adviser thereto” under 28 C.F.R. § 45.2(c). Most significantly, these facts clearly demonstrate that Sessions had and has a close identification with Trump and close aides of the President.

Under 28 C.F.R. § 45.2, no individual who played such a key role on the Trump presidential campaign and had served as a key adviser to Trump and members of his administration—establishing, at a minimum, a political relationship to those entities as defined by 28 C.F.R. § 45.2(c)(1)—could participate in an investigation into contacts between the Trump campaign and Russian actors or Russian interference with the 2016 presidential election. Any such person would have both a “political relationship” with the subject of the investigation and “a specific and substantial interest that would be directly affected by the outcome of the investigation[s].”

Under these circumstances, the decision by Sessions to recuse himself was not an optional matter. Once he became attorney general, Sessions had no choice but to recuse himself from participating in any criminal investigation that substantially involved the conduct of Trump, the Trump campaign or Trump campaign aides. If Attorney General Sessions had not recused himself from the investigation, he would have been in violation of Justice Department rules and subject to Departmental sanction for violating those rules.

Appointment of Special Counsel Was Also Legally Required

Once Sessions recused himself, responsibility for leading the Russia investigation fell to Rosenstein, who was next in line. Rosenstein himself reportedly consulted with a Justice Department ethics adviser who told him that he did not have any conflict of interest that required his own recusal.

Nonetheless, Justice Department regulations required him to appoint a special counsel to work under his supervision.

The regulation states that the attorney general, “or in cases in which the Attorney General is recused, the Acting Attorney General”:

will appoint a Special Counsel when he or she determines that a criminal investigation of a person or matter is warranted and—

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for this matter.

(emphasis added).

This standard was met in the situation facing Rosenstein in early 2017.

First, the DOJ had already determined that a criminal investigation of possible Russian interference, and possible collusion between the Trump campaign and Russia, was warranted; indeed, the investigation had already been opened by DOJ’s Criminal Division.

Second, in this situation, DOJ as a whole had a clear “conflict of interest” in further conducting the Russia investigation and there were “extraordinary circumstances” within the meaning of the special counsel regulation.

The Russia investigation involves the president of the United States, his campaign and his close associates. Everyone at the Justice Department works for the president, and high-level officials are all subject to receiving orders directly from the president and being removed from their positions by the president at will.

In these extraordinary circumstances, it is essential to have the day-to-day investigation and potential prosecutions that may arise from the investigation conducted by someone who is outside the president’s immediate control and who is insulated against removal by the president without cause.

Because the Russia investigation involves the president and other high-ranking current or former White House or campaign officials, the conduct of this investigation has to maintain public confidence and credibility. The Justice Department Special Counsel regulations serve this important national purpose by requiring the appointment of an outside special counsel in the “extraordinary circumstances” presented here, and where it is in the public interest to appoint a special counsel.

Under these circumstances, the Justice Department regulation required Rosenstein to appoint Mueller. In doing so, Rosenstein was properly taking a mandatory, not a discretionary, action.

Trump’s unwarranted and unjustified claims that Sessions should not have recused himself and that the appointment of a special counsel was illegal are just plain wrong. His false and misleading claims, which no doubt will continue, should be ignored. 

About the Author(s)

Fred Wertheimer

President of Democracy 21. You can follow him on Twitter @FredWertheimer.

Donald Simon

Counsel to Democracy 21 and a partner at Sonosky, Chambers, Sachse, Endreson & Perry.