Sessions Abuses His So-Called Recusal in Advising Trump

In contrast to Neil Gorsuch, Sessions embodies the appearance of conflict of interest.

Photo Credit: YouTube/PBS

“I have recused myself in the matters that deal with the Trump campaign,” declared Attorney General Jeff Sessions on March 2.

Sessions made the pledge amid a storm of criticism after it was revealed that he had failed to disclose his contacts with Russian officials during his confirmation hearing. Under oath, Sessions told Sen. Al Franken (D-MN) that he had “no communications with the Russians during the campaign." In fact, as the Washington Post had revealed the day before, Sessions met twice with Russian Ambassador Sergey Kislyak, once for a private discussion.

More than two months later, on May 9, Sessions apparently violated his pledge and involved himself in "matters that deal with the Trump campaign.” He recommended that President Trump fire FBI director James Comey, the man leading a multi-agency investigation of possible collusion between Trump aides and Russian officials. Sessions acted just days after Comey had asked the Justice Department for "significant increase in resources" for the investigation, according to the New York Times. NPR reports that Sessions is now interviewing candidates for Comey’s position.

“This is a complete betrayal of his commitment to the public that he wouldn’t be involved in the investigation,” Franken said in a statement Wednesday.

In the language of the law, recusal is the act of a judge or prosecutor being removed or excusing himself from a legal case due to conflict of interest or other good reason. As the nation’s top law enforcement officer, Sessions qualifies as a prosecutor.

Sen. Kirsten Gillibrand called Sessions’ actions “chilling.”

Gorsuch's Way

Another Trump appointee, Supreme Court Justice Neil Gorsuch, has a very different understanding of recusal.

In more than a decade as a judge on the U.S. Court of Appeals, Gorsuch recused himself in more than 1,000 cases, according to documents submitted to the Senate Judiciary Committee for his confirmation hearing.

By comparison, Justice Sonia Sotomayor, the last nominee with judicial experience, listed 120 recusals during her 10 years on the federal bench.

In his written statement to the Judiciary Committee, Gorsuch cited possible conflicts involving his corporate law practice, his personal investments and his tenure in government as reasons for excusing himself from issues before the court.

Gorsuch was especially sensitive about his time in the Bush Justice Department, where he served as principal deputy associate attorney general from 2005-2006. Bush then appointed him to the federal bench. In his first two years as a judge, Gorsuch recused himself from 138 cases, citing his previous position in the Justice Department.

Sessions is not so scrupulous.

“The recommendation to fire director Comey over his role in the 2016 campaign is a clear violation of Attorney General Sessions’ recusal, and the Inspector General should immediately open an investigation," said Austin Evers, executive director of the nonprofit group American Oversight.

Charles Geyh, a judicial ethics expert at Indiana University's Maurer School of Law, told the National Law Journal, “As a circuit judge, Gorsuch appears to have erred on the side of disqualification, which strikes me as fine, and reflects a sensitivity to potential perception problems that I appreciate.”

“I have sought to take seriously the admonition that a judge should ‘disqualify himself in any proceedings in which his impartiality might reasonably be questioned,'" Gorsuch told the Judiciary Committee.

Jeff Sessions does not take that admonition seriously. If he did, he wouldn’t have lied about recusing himself from the Russia investigation.

Jefferson Morley is AlterNet's Washington correspondent. He is the author of the forthcoming biography The Ghost: The Secret Life of CIA Spymaster James Jesus Angleton (St. Martin's Press, October 2017) and Snow-Storm in August: Washington City, Francis Scott Key and the Forgotten Race Riot of 1835.

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