USA Justice

Russia-Trump ties: Is Sessions' recusal enough?

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Still needed, some experts say, is a special prosecutor or bipartisan commission to investigate contacts between officials from Russia and the Trump campaign.

At a news conference at the Justice Department March 2, 2017, US Attorney General Jeff Sessions recused himself from all investigations involving the Trump campaign.
Yuri Gripas/Reuters
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Attorney General Jeff Sessions' decision to recuse himself from investigations of Russian contacts with Trump campaign officials is a step in the right direction, some legal experts say. 

But more needs to be done for a responsible investigation into Russia, the election, and the Trump campaign, they add.

An investigation needs a greater degree of independence – perhaps through a special prosecutor, used during Watergate and again in the Clinton “Whitewater” scandal, or a bipartisan commission, such as the 9/11 Commission.

Reports suggest that Mr. Sessions twice met with the Russian ambassador to the United States last year – information he did not disclose during his Senate confirmation hearings in January. On Thursday, Sessions announced that it would be “right and just” to recuse himself in matters “that deal with the Trump campaign.”

He added: “I have now decided to recuse myself of any existing or future investigations of any matter relating in any way to campaigns for president of the United States.” Some legal analysts pointed out that his wording about the campaign made it unclear if Sessions would recuse himself from investigations involving Trump's activities as president. [Editor's note: This sentence was added to explain the contention by some that the attorney general's recusal was partial.

A recusal from the nation's top law enforcement official is rare in these kinds of investigations. But allegations of Russian interference in the 2016 campaign have beset President Trump for months. 

Michael Flynn, the president's former national security adviser, resigned last month after reports that he had discussed Russian sanctions with the same ambassador, Sergey Kislyak, before Trump took office.

In a press conference Thursday, Sessions said that he had been considering whether to recuse himself before The Washington Post  reported news of his meetings with Mr. Kislyak.

He also said he was taken aback during his confirmation hearings by a question from Sen. Al Franken (D) of Minnesota about contacts with Russian officials. At the time, Sessions said he did not have any such contacts. At Thursday's press conference, however, he acknowledged he should have “slowed down and said I did meet one Russian official a couple times.”

Multiple investigations

Multiple investigations are ongoing. An interagency group including the Federal Bureau of Investigation, the Central Intelligence Agency, the National Security Agency, and Treasury Department has been investigating communications between Trump campaign officials and Russia for months, perhaps since as early as April 2016, according to reports. Separately, three Senate committees are delving into different allegations of Russian interference in the election.

But there is a sense that neither Sessions’ recusal nor the current investigations are sufficient. Sessions’ decision “is incredibly important, but I don’t think it’s enough,” says Jonathan Smith, a lawyer in the Justice Department’s Civil Rights Division during the Obama administration.

“It’s critically important that there’s an independent review, not just of Sessions but of the entire questions around [Trump campaign] contact with Russians during the campaign,” he adds.

Special prosecutor

Some lawmakers from both parties are calling for a special prosecutor.

Such an approach has proved effective in the past. But the attorney general has traditionally had significant authority over the appointment and handling of special prosecutors. 

On one hand, “special counsels” are the way for the Justice Department to handle “matters which may raise a conflict of interest” for the department, according to a 2013 Congressional Research Service (CRS) report. Yet the special counsels are “appointed by … answerable to, and may have their prosecutorial or investigative decisions countermanded by” the attorney general, it added. Some investigative actions, like wire intercepts and subpoenas, would require prior approval from the attorney general, according to another CRS report.

In the case of a recusal of the attorney general, the acting attorney general would be in charge of appointing a special counsel. But the second- and third-highest ranking officials in the Justice Department have not yet been confirmed by the Senate.

Commission or select committee?

Others are calling for a broader approach. One idea is an independent, bipartisan commission in the style of the 9/11 Commission. Another is the creation of a temporary investigative select committee within Congress.

“The essential problem is that there is no current congressional mechanism with the investigative scope, staffing, and will to answer these questions in a serious fashion,” write Susan Hennessey and Benjamin Wittes on the Lawfare blog.

They argue for a select committee, suggesting that a 9/11-style commission would be too grandiose and ill-fitted for the current partisan environment.  

“Given the palpably toxic atmosphere, a serious and credible investigation into Trump and his associates will … be met with substantial resistance by the White House and administration appointees,” they write.

While a select committee would be vulnerable to the political whims of congressional leaders, it would provide the necessary flexibility and authority to carry out a fair investigation, they suggest. 

And unlike a special prosecutor, it would be above the appearance of influence by the Justice Department.

“Sessions himself may be implicated in the exact subject matter of what this investigation would entail,” says Kami Chavis, a former assistant US attorney and now director of the Criminal Justice Program at Wake Forest University School of Law.

“In the interest of transparency, and in order for us to have trust and confidence in that investigation, [the investigation] should happen outside of the Justice Department.”