Executive Branch

Did Attorney General Sessions Violate His Promise to Recuse Himself in Recommending Comey’s Dismissal?

Susan Hennessey, Quinta Jurecic
Wednesday, May 10, 2017, 4:20 PM

Attorney General Jeff Sessions played a key role in the firing of FBI Director James Comey last night by unequivocally recommending Comey’s dismissal to the President of the United States.

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Attorney General Jeff Sessions played a key role in the firing of FBI Director James Comey last night by unequivocally recommending Comey’s dismissal to the President of the United States. On March 2, however, Sessions capitulated to pressure to recuse himself from certain investigation following reports that he had met twice with Russian Ambassador Sergey Kislyak over the course of the presidential campaign, meetings he did not divulge before the Senate Judiciary Committee during his confirmation hearing.

At the time, that was widely characterized as a decision to recuse himself on the Russia investigation. But his actual pledge is broader. In a statement, Sessions announced: “I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States. I have taken no actions regarding any such matters, to the extent they exist.”

That raises the question: does Sessions’ letter violate the recusal pledge? Several Democratic members of Congress have flagged Sessions’ recusal as a cause for concern given his involvement in Comey’s firing. These senators and representatives include Tammy Duckworth (D-IL), Al Franken (D-MN), Tim Kaine (D-VA), Patrick Leahy (D-VT), John Conyers (D-MI), Bob Casey (D-PA), Elijah Cummings (D-MD), and Adam Schiff (D-CA), who is the ranking member of the House Permanent Select Committee on Intelligence. Ron Wyden (D-OR) has gone further, calling on Sessions to resign for going against his pledge to recuse himself.

These members of Congress all assume that Comey’s firing is linked to the Russia Connection and are therefore arguing that Sessions has violated his pledge to step aside from that particular investigation. Yet even if we accept the White House’s stated rationale that the Director was fired because of his controversial conduct surrounding the Clinton email investigation, this might still fall within the scope of Sessions’ expansive pledge to recuse himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

In his letter to Comey, President Trump relies on “the clear recommendations of both Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions.” A memo authored by Deputy Attorney General Rod Rosenstein offers the substantive rationale for Comey’s removal, but does not explicitly recommend Comey be removed. Rather, in a tortured final paragraph, Rosenstein writes,

Although the President has the power to remove an FBI director, the decision should not be taken lightly. I agree with the unanimous opinions of former Department officials. The way the Director handled the conclusion of the email investigation was wrong. As a result, 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. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.

Sessions, however, goes further. He holds off from explicitly listing the rationale behind the removal, instead referring to the attached Rosenstein memo. Sessions then expressly recommends that Comey be removed. His letter to President Trump reads as follows:

As Attorney General, I am committed to a high level of discipline, integrity, and the rule of law to the Department of Justice—an institution that I deeply respect. Based on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI. It is essential that this Department of Justice clearly reaffirm its commitment to longstanding principles that ensure the integrity and fairness of federal investigations and prosecutions. The Director of the FBI must be someone who follows faithfully the rules and principles of the Department of Justice and who sets the right example for our law enforcement officials and others in the Department. Therefore, I must recommend that you remove Director James B. Comey, Jr. and identify an experienced and qualified individual to lead the great men and women of the FBI.

In other words, the substantive basis of Comey’s firing is Sessions’s conduct in the handling of an investigation “related … to the campaigns for President of the United States.” Testifying before the Senate Judiciary Committee last week, Comey himself stated that he chose to publicize details of the investigation because of the unique circumstances involving the presidential campaign. So one might conclude that, though the investigation was specifically focused on Clinton’s maintenance of a private email server, this is a matter related to the investigation of the presidential elections and that Sessions should therefore have been recused.

Even that assumes we accept the administration’s stated reasons for dismissing Comey. But evidence is mounting that Comey’s firing may, instead, be linked to his oversight of the FBI’s ongoing investigation into the relationship between Trump associates and the Kremlin. Trump was reportedly growing increasingly frustrated over Comey’s role in the Russia investigation, and the latest reporting indicates that Comey met with Rosenstein a week before his firing to request additional resources with which to conduct the investigation. While nothing has yet been confirmed, many people are saying…

Those people include Sen. Dianne Feinstein, who has said that, in a conversation with Trump yesterday night, Trump told her he had asked Rosenstein and Sessions to “look into” the state of the FBI, which he described as “a mess.” Following this request, according to Feinstein’s characterization of Trump’s comments, Rosenstein produced the memo and Trump decided to dismiss Comey.

But before you start firing up the professional responsibility complaints, this is far from an open and shut case.

In his recusal pledge, Attorney General Sessions did not recuse himself from supervision of the FBI generally. Even if the conduct that led to Comey’s removal flowed from his handling of the Clinton email investigation, the removal of the FBI Director goes to issues of much broader significance than merely one or two investigations. Sessions might argue that the firing decision was not actually part of any investigation at all; it is a broader assessment of Comey’s continued fitness to lead, made the attorney general’s managerial capacity. Sessions clearly retains the ability to recommend the removal of an FBI Director whom he views as unfit; that the reason for unfitness flows from a matter from which he is recused perhaps indicates why the heavy lifting was done by Rosenstein, but it doesn’t require that Sessions abstain from all matters pertaining to Comey’s future at the Bureau.

Moreover, Sessions’ involvement in Comey’s dismissal was not the dispositive factor in his firing. He sits in the middle point in the chain: Rosenstein wrote the memo explaining his perception of Comey’s supposed shortcomings, though he did not explicitly offer a recommendation one way or the other; Sessions recommended Comey’s firing to the President on the basis of Rosenstein’s memo (without referencing Rosenstein’s specific concerns about the handling of the Clinton investigation in anything other than the broadest language); and it was Trump himself acted on Sessions’ recommendation and fired Comey. On one end, the President is the ultimate decisionmaker. On the other end, Rosenstein, who is the Acting Attorney General for matters in which Sessions has recused himself, laid out the case for dismissal. If Sessions had written the memo produced by Rosenstein, the case for his recusal would be far stronger. Instead, he might argue that he merely weighed in in a broad supervisory capacity on the recommendation of his subordinate with respect to a matter from which he was recused and, therefore, did not participate.

Even if Sessions’ conduct constitutes a violation of his pledge to recuse himself, this thread of the story will still probably turn out to be of relatively small importance if the administration’s stated reason for dismissing Comey emerges as pretextual. If this is confirmed, it would raise questions about the conduct of those involved in Comey’s firing that would go far beyond Sessions’ possible breach of his commitment.

Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.

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