Recusal is not enough for Jeff Sessions

Justice demands a special prosecutor.

CREDIT: AP Photo/Susan Walsh, Pool
CREDIT: AP Photo/Susan Walsh, Pool

Attorney General Jeff Sessions announced on Thursday afternoon that he would recuse himself from further investigations into the Trump campaign’s connections to Russia. This announcement follows revelations that he met twice with Russia’s ambassador while he was a Trump campaign surrogate, and then falsely testified that he “did not have communications with the Russians.”

Recusal is step towards ensuring a fair and open investigation into Trump and his closest advisers’ Russian ties, but it is not itself sufficient to eliminate the conflicts of interest that anyone involved with this investigation will necessarily face. Sessions is no longer just an ally and a subordinate to Donald Trump, he is now a likely target of the investigation. He potentially faces criminal charges.

Every single employee of the Justice Department, moreover, is subordinate to Sessions. Even if Sessions is technically recused from the Russia investigation, he still has significant power to pressure the investigators and to impact their future within the Justice Department. He also supervises the deputy attorney general, who will now be the senior-most Justice Department official tasked with reviewing whether Attorney General Sessions committed a crime.

One option is that Sessions could resign. Many members of Congress already called on Sessions to recognize that he is too compromised to remain in his current job, and a resignation would certainly the immediate problem of having a man who is likely to be the target of a Justice Department investigation running the Department of Justice.

If Sessions is unwilling to resign, however, the Justice Department can still take actions to insulate investigators as much as possible from Mr. Sessions’ authority.

First, Acting Deputy Attorney General Dana Boente should immediately appoint a special counsel to conduct the Russia investigation and to investigate whether Sessions violated any federal laws. Under current DOJ regulations, such special counsel “shall be a lawyer with a reputation for integrity and impartial decision making, and with appropriate experience to ensure . . . that the investigation will be conducted ably, expeditiously and thoroughly.”

Anyone Boente chooses for this role should be someone who is in no way beholden to Sessions, Trump, or the Republican Party.

Second, DOJ regulations do not make the special prosecutor truly independent from the Department’s brass. Under those regulations, “the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” Because Sessions is recused, Boente will enjoy this authority for as long as he remains acting deputy attorney general.

To assure the nation that the special prosecutor will not be manipulated by political appointees, Boente should announce immediately that he will in no way interfere with the special prosecutor’s investigation, barring gross misconduct or illegal activity. Trump’s nominee to take over as deputy attorney general, Rod J. Rosenstein, should also announce that he will give the same level of deference to the special counsel before he is allowed to receive a confirmation hearing or vote.

Third, the entire investigation should be public. All of the special prosecutor’s non-classified findings should be published online before the next election date, so that voters can account for them when they go to the polls. The special prosecutor should also provide Congress and the public with periodic updates on the progress of their investigation.

These are extraordinary measures, but that is because America now faces an extraordinary challenge. The nation’s chief law enforcement officer is likely to be the subject of a federal investigation. That requires strong measures to ensure that the investigation is thorough, impartial, and beyond the reach of political appointments.