Jeff Sessions’ pledge seemed unambiguous. “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,” the attorney general said on March 2.
His recusal came after the Washington Post revealed he had met with Russian Ambassador Sergey Kislyak in the months before the 2016 election. In his January 2017 confirmation hearing, the then-senator from Alabama had denied any contacts with Russians during the campaign, when he served as a top adviser to Donald Trump. His recusal applied to probes of Russian election meddling—and interactions between Moscow and the Trump campaign—but it also appeared to include matters concerning Hillary Clinton. During his confirmation hearing, Sessions had already pledged to recuse himself from “investigations that involve Secretary Clinton.” And the day of Sessions’ March 2 recusal, his chief of staff circulated an email to Justice Department staff noting that the recusal meant Sessions would not participate in the department’s responses to congressional and media inquiries related to the investigations. So everything seemed covered: Sessions would not get involved in any deliberations or probes regarding the Russian intervention, the 2016 campaigns, or Clinton.
Yet Sessions appears to have backtracked on his pledges, and Democrats say he is violating his recusal. This criticism comes as, last week, Sessions became the first Cabinet member to be interviewed by Special Counsel Robert Mueller’s team.
Questions about Sessions’ recusal came early on, when he played a role in the May 2017 firing of then-FBI Director James Comey, whose ouster Trump acknowledged was directly related to the bureau’s investigation of his campaign’s contacts with Russia. But more recently, Sessions appears to have directed prosecutors to look into matters connected to Clinton’s campaign.
Sessions’ recusal infuriated Trump, and multiple White House staffers, including the president’s chief lawyer, Don McGahn, tried to talk him out of giving up oversight of the Russia investigation. Trump publicly rebuked Sessions’ decision in an interview with the New York Times. “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job and I would have picked somebody else,” Trump said. Democrats say Sessions is now bowing to political pressure from the White House and Trump, who has tweeted attacks on his own Justice Department and called on Sessions to go after Clinton, and they accuse Sessions of participating in an all-out effort to politicize his agency. This week, Axios reported that Sessions had pressed FBI Director Christopher Wray to fire his deputy, Andrew McCabe, who had also been Comey’s No. 2. Trump, and his Republican allies have relentlessly targeted McCabe, whose wife was a Democratic candidate for state Senate in Virginia, to advance a narrative of anti-Trump bias within the FBI.
“It is extremely troubling that Attorney General Jeff Sessions reportedly ordered prosecutors and agents to review their previous investigations relating to Secretary Clinton despite the fact that he supposedly recused himself from such matters,” Rep. Elijah Cummings of Maryland, the top Democrat on the House Oversight and Government Reform Committee, said in a statement to Mother Jones. “In addition, there are serious questions about whether the onslaught of relentless criticism and unprecedented pressure from President Donald Trump in any way affected the reported decision by the Department of Justice to re-open investigations relating to Secretary Clinton.”
He added, “Justice Department investigations should be based on facts and evidence—not based on incessant political pressure from the White House.”
Rep. Jerrold Nadler of New York, the top Democrat on the House Judiciary Committee, emphasized that recusal or not, Sessions’ meddling in Clinton-related matters is wholly improper, part of a politicized bid to assist Trump and congressional Republicans in halting the momentum of the Russia scandal by resurrecting past Clinton controversies, such as the debunked Uranium One scandal.
“The attorney general should not be giving instructions as to what case to open or reopen,” Nadler told Mother Jones in an interview. “It’s a politically motivated decision, and you don’t want a situation where the president, acting through the attorney general or higher officials in the administration, is determining that his political opponents ought to be prosecuted or investigated. That’s a banana republic.”
Sessions has explained he was compelled to recuse himself by a Justice Department regulation that requires a department official to step aside from a “criminal investigation or prosecution if he has a personal or political relationship with…an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization.” As a senior adviser to and confidant of Trump during the campaign, Sessions offered a textbook case. Not only is the campaign he advised under criminal investigation for possible collusion with Russia, but Trump and his surrogates repeatedly demanded during the presidential race that Clinton be jailed.
“The general, overarching rule about recusal is that a government official should recuse, especially a prosecutor should recuse, when a reasonable person might question the propriety of their involvement and their impartiality,” says Andrew Kent, an expert in professional responsibility and legal ethics at Fordham University School of Law. He points to Sessions’ role in Comey’s ouster as the clearest breach of his pledge. “The more we learn, the worse it looks for Sessions, I think, on the firing of Comey,” he says. “I don’t really have a good explanation of how he could have anything to do with that.”
It remains unclear how Sessions and his agency are interpreting his recusal. Justice Department spokeswoman Sarah Isgur Flores declined to elaborate on Sessions’ past statements on the matter. But the question has become more urgent over the past few months, as reports have trickled out that the Justice Department is once again investigating Clinton’s email server, her family’s foundation, and the Uranium One deal. The Justice Department has refused to detail these probes or what role Sessions played in establishing them.
But the investigations appear to result from pressure by House Judiciary Committee chairman Bob Goodlatte (R-Va.), Senate Judiciary Committee chairman Chuck Grassley (R-Iowa), and other Republicans who have asked Sessions and Deputy Attorney General Rod Rosenstein to appoint a special counsel to probe hot-button accusations against Clinton and the Obama administration that they argue were not sufficiently investigated during the last administration.
In November, the Justice Department responded in writing to Goodlatte, stating that Sessions “has directed senior federal prosecutors to evaluate certain issues raised in your letters.” The letter notes that the issues lawmakers raised include Uranium One and the Clinton Foundation, and it states that “these senior prosecutors will report directly to the Attorney General and Deputy Attorney General, as appropriate.” It does not state specifically what Sessions told prosecutors to look into. Flores, Sessions’ spokeswoman, suggested that some of the letter’s queries were outside the scope of his recusal. She said the agency’s letter to Goodlatte addressed “several issues not just Clinton. ”But all the issues Goodlatte and other Republicans have asked the department to investigate relate in some way to the Clinton or Trump investigations.
Sessions might argue that he can honor his recusal by instructing prosecutors to look into reopening investigations of Clinton, as long as they report back to his deputy. But that approach would still violate his recusal: If it’s inappropriate for Sessions to evaluate prosecutors’ findings, then it’s also inappropriate for him to authorize their inquiries.
“If you are recused, you are recused, period,” says Matthew Miller, who headed the Justice Department’s public affairs office under Attorney General Eric Holder. “You are not briefed on it. You’re not involved in any decisions, absolutely not. And you shouldn’t be involved in the congressional strategy around it. Recusal is 100 percent.”
Sessions and his aides seem determined to leave the parameters of his recusal murky. Last March, House Democrats sent a letter to the attorney general asking for specifics on which matters he would and wouldn’t handle. Nearly 10 months later, on January 16, they received a response from Assistant Attorney General Stephen Boyd that failed to answer any of their questions, while noting Mueller’s well-known appointment as special counsel. Due to a policy of maintaining confidentiality of “pending matters,” Boyd said, the department “is not in a position to respond further to your inquiry at this time.”
In a statement provided Monday to Mother Jones, three Democrats on the House Judiciary Committee—Nadler, Hakeem Jeffries of New York, and Ted Lieu of California—ripped the Justice Department response as evidence of the Trump administration’s refusal to submit to congressional oversight. “We expect the Attorney General to retract this form letter and provide us with a direct and substantive response without delay,” they wrote, “just as we expect the Department of Justice to release any and all documents that may relate to the scope and application of Sessions’ recusal.”
Read the email Sessions’ chief of staff sent in March explaining his recusal: