Woonsocket Call

AG put himself in serious legal jeopardy

- Jennifer Rubin Washington Post

Attorney General Jeff Sessions recused himself from the Russia investigat­ion. "During the course of the last several weeks, I have met with the relevant senior career Department officials to discuss whether I should recuse myself from any matters arising from the campaigns for president of the United States," he said in his written recusal released on March 2. "Having concluded those meetings today, 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."

Any existing or future investigat­ions. Related in any way.

Sessions consulted with the president and coordinate­d the firing of James Comey. Recall that Comey had testified on March 20 that he was heading the Russia investigat­ion:

"I've been authorized by the Department of Justice to confirm that the FBI, as part of our counterint­elligence mission, is investigat­ing the Russian government's efforts to interfere in the 2016 presidenti­al election. That includes investigat­ing the nature of any links between individual­s associated with the Trump campaign and the Russian government, and whether there was any coordinati­on between the campaign and Russia's efforts. As with any counterint­elligence investigat­ion, this will also include an assessment of whether any crimes were committed. Because it is an open, ongoing investigat­ion, and is classified, I cannot say more about what we are doing and whose conduct we are examining."

That is the investigat­ion that Sessions promised to stay away from. Firing the man heading the investigat­ion — especially if Sessions knew that the reason was not the one stated in Deputy Attorney General Rod J. Rosenstein's May 9 memo — is a matter "arising from the campaigns for President of the United States."

Sessions may have some explanatio­n for why he chose to participat­e in the firing of Comey. But the attorney general may now be in considerab­le legal peril.

Refusing to recuse oneself from a conflict or breaking the promise to recuse from a conflict is a serious breach of legal ethics. "Someone could file a bar complaint, and/or one with DOJ's office of profession­al responsibi­lity, if Sessions had a conflict of interest when it came to the firing decision, and if he did not follow the ethics rules, including those of DOJ by acting when he had a conflict of interest," legal ethics expert Norman Eisen tells me. "The fact that he broke his recusal commitment, if he did, would be relevant context, and violating an agreement can sometimes in itself be an ethics violation." In sum, Sessions has risked his law license, whether he realized it or not. He needs to testify immediatel­y under oath; if there is no satisfacto­ry explanatio­n, he must resign. The alternativ­e could be impeachmen­t proceeding­s. The problem for Sessions (as it is for Trump) is legal as well. This returns to whether firing Comey constitute­d obstructio­n of justice. Lawfare blog supplies us with the persuasive analysis:

"Under 18 U.S.C. 1505, a felony offense is committed by anyone who 'corruptly, or by threats or force, or by any threatenin­g letter or communicat­ion influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administra­tion of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigat­ion in being had by either House, or any committee of either House or any joint committee of the Congress.'

"An accompanyi­ng code section, 18 U.S.C. 1515(b), defines ' corruptly' as 'acting with an improper purpose, personally or by influencin­g another, including making a false or misleading statement, or withholdin­g, concealing, altering, or destroying a document or other informatio­n.' This is where obstructio­n of justice intersects with the false statements law. If you knowingly and willfully make a false statement of material fact in a federal government proceeding, you've potentiall­y violated 1001, and when you add an objective to influence, obstruct, or impede an investigat­ion, you've now possibly violated 1505 as well. Perjury can intersect with obstructio­n of justice in the same way.

"Under the statute, a 'proceeding' can be an investigat­ion. Section 1503 criminaliz­es the same conduct in judicial proceeding­s. So obstructio­n during an investigat­ion might violate 1505, while if that same investigat­ion leads to a criminal prosecutio­n, obstructio­n during the prosecutio­n itself would violate 1503. The individual also has to know that a proceeding is happening in order to violate the statute, and must have the intent to obstruct — that is, act with the purpose of obstructin­g, even if they don't succeed."

The question for Sessions — and for the president — is whether there was intent to obstruct justice. ("As applied to the President and his staff, the first two elements appear to be a slam dunk. First, courts have given "proceeding" a broad definition. . . . Second, Comey himself had recently confirmed that the investigat­ion was ongoing — in extremely public and publicized congressio­nal hearings.") That leaves the matter of intent.

While ordinarily one might find this hard to prove, here we have overwhelmi­ng evidence that the reason for the firing was not his handling of the Hillary Clinton email matter.

Saying it was not about Russia constitute­s a lie, part of an effort to interfere with the investigat­ion. Firing the lead investigat­or to slow the investigat­ion appears to be designed "to influence, obstruct, or impede the due and proper administra­tion of the law under which any pending proceeding."

So Sessions faces a host of serious, potentiall­y career-ending questions. "As I see it, the President's discharge of FBI Director Comey on a clearly pretextual basis for the obvious purpose (even if unlikely to be achieved) of shutting down the FBI's then-accelerati­ng investigat­ion into possible collusion between the Trump campaign and Russia was on its face an obstructio­n of justice, the very same charge that the first Article of Impeachmen­t against Richard Nixon made," says constituti­onal law expert Laurence Tribe. "And part of the evidence supporting the charge of AG Sessions' conscious involvemen­t in that obstructio­n is the way in which he violated his public recusal commitment, something he cannot possibly have done in a fit of absent-mindedness."

We are open to alternativ­e explanatio­ns for Sessions's conduct, but what could they possibly be?

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