Senate Democrats are calling for Attorney General Sessions to recuse himself from reported inquiries into contacts between former National Security Adviser Michael Flynn and the Trump campaign’s contacts with Russia, but legal experts also say that Sessions’ closeness to President Trump raises questions about his ability to be impartial.
“Those prosecutors should not be reporting to the first senator who endorsed Donald Trump’s campaign, who served on the same campaign committee as Michael Flynn, and who nominated Donald Trump at the Republican convention,” Democratic Majority Leader Chuck Schumer said at a press conference Wednesday. “The Justice Department’s own guidelines demand that Attorney General Sessions remove himself from this matter immediately.”
Flynn resigned Monday night following reports that he misled Trump officials about contacts with the Russian ambassador to the United States, Sergey Kislyak, prior to Trump’s inauguration. Those exchanges reportedly included discussion of sanctions imposed by the Obama administration as retaliation for alleged Russian interference in the 2016 election, something that Flynn had repeatedly denied. A joint report from American intelligence agencies concluded that Russia engaged in an organized campaign to throw the election to Trump.
Following Flynn’s resignation, reports said that the FBI was looking into contacts between Russian intelligence and Trump associates during the campaign. There are also lingering questions about whether Flynn acted alone or at the direction of someone in the administration.
Justice Department guidelines state that “no DOJ employee may 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 who would be directly affected by the outcome." Several legal experts said that those guidelines and others restricting the conduct of executive branch officials suggested that Sessions should, at the very least, consult ethics officials as to whether recusal is necessary.
“There is a substantial appearance issue,” said John Q. Barrett, who was an associate counsel for the independent counsel looking into the Iran-Contra affair, and is now a professor at St. John’s University School of Law. “I think the wise course would be for the attorney general to step aside from this matter.”
Democrats haven’t said whether they believe an independent counsel is necessary, or whether they would be satisfied with Sessions simply removing himself from decisions involving those inquiries. In 2016, then-Attorney General Loretta Lynch publicly announced that she would accept the recommendations of career attorneys in the Justice Department in the Hillary Clinton email investigation, following a brief meeting with former President Bill Clinton that Republicans said harmed her ability to be impartial.
Sessions, who was sworn in as attorney general less than a week ago, was among the first of Trump’s high-profile endorsers and advised the campaign. White House strategist Steve Bannon told the Washington Post that Sessions was “the clearinghouse for policy and philosophy” in the Trump administration, describing Sessions as “the fiercest, most dedicated, and most loyal promoter in Congress of Trump’s agenda.”
That influence appears to have gone both ways––in 2014, Sessions was a conservative Russia hawk, saying that Russia should be made to “feel pain” for its actions in Ukraine. By August 2016, he was a dove, telling CNN that "this whole problem with Russia is really disastrous for America, for Russia and for the world," and that "Donald Trump is right. We need to figure out a way to end this cycle of hostility that's putting this country at risk, costing us billions of dollars in defense, and creating hostilities.
“I think an argument can be made there is no reason for the U.S. and Russia to be at this loggerheads," Sessions said. "Somehow, someway, we ought to be able to break that logjam."
In October 2016, Sessions told CNN that he wasn’t sure Russia was responsible for the hack and subsequent release of emails belonging to Democratic Party officials. “I haven't had briefings that indicate with any clarity that Russia is doing this,” Sessions said. In his confirmation hearing in January, Sessions told the Senate Judiciary Committee he had “no reason to doubt” the conclusion of the U.S. intelligence agencies that held Russia responsible.
Sessions, along with Flynn, was part of the Trump campaign’s “national security advisory council.”
“He did act in an official capacity with the campaign,” said Kathleen Clark, a government legal ethics expert and professor at Washington Law. “I believe that Sessions has to recuse himself.”
Bruce Green, director of the Louis Stein Center for Law and Ethics at Fordham University, said that while he didn’t believe Sessions’s campaign role necessarily meant Sessions should recuse himself, his status as a sitting attorney general meant that he should at minimum consult the Justice Department’s ethics attorneys on the matter.
“When the Iran-Contra investigation was taking place, and it implicated people up to President Reagan, no one thought a sitting attorney general could oversee the investigation,” said Green, who was an associate counsel on the Iran-Contra investigation. Sessions “has a relationship as attorney general with the president, he is a subordinate of the president, he has to deal with the president on a daily basis; the regulation refers to having to recuse if you have a political relationship with an elected official who is involved in the conduct that is the subject of the investigation.”
For his part, Sessions told Senate Democrats who asked if he would recuse himself from investigations involving Flynn or Russian hacking that “I am not aware of a basis to recuse myself from such matters,” and that “if a specific matter arose where I believed my impartiality might reasonably be questioned, I would consult with Department ethics officials regarding the most appropriate way to proceed.”
Asked whether Sessions planned to recuse himself or had consulted ethics officials about doing so, a spokesperson for the Department of Justice said the department had no comment on the matter “for now.”
Democrats, however, are unlikely to let it go. “If this trail leads to the Oval Office,” Schumer said Wednesday, “the person investigating that trail should not be the same person who helped put President Trump there, end of story.”