Vail Law: Here’s a quick primer on recusal, in law and politics (column)
October 2, 2018
Attorney General Jefferson Beauregard Sessions III, at the beginning of the special counsel investigation into alleged campaign collusion between President Donald Trump and Russia, recused himself from the Russia probe.
He said he did so because … well, he had to, because it was what Department of Justice rules required that he do.
The DOJ regulation Sessions cited — 28 CFR 45.2 — provides 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."
A couple of things stand out in that tightly worded little nugget.
First, it cites a "criminal investigation or prosecution." That speaks volumes about what has now become known to all the world as the "Mueller investigation." I'll circle back to that in just a second.
Second, the rule holds that if a "DOJ employee … has a personal or political relationship with any person or organization …" that is "the subject of … investigation, or who would be affected by the outcome," the DOJ employee is relegated to the bench. He or she may simply not be involved.
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What you may not know — or may have forgotten — is that Sessions was an early, vocal and active Trump supporter and surrogate. He was first among sitting U.S. senators to endorse Trump in the 2016 campaign, often stumped with or for Trump and served as chairman of the campaign's national security advisory board. You could say … um … he was just a bit "involved" with Trump and his campaign or, in the rule-speak of the department, he had "a personal or political relationship" with Trump. Enough so, that he was rewarded for his loyalty with the plum of the attorney generalship when Trump won the electoral college and became the 45th commander in chief.
No choice in the matter
While Trump has since mercilessly blasted Sessions — calling him, among other unflattering things, "weak" and "ineffective" — and the betting money is that by the time the ink dries on the morning dailies following the coming midterm elections, Sessions will be hung out to dry back in his sweet Alabama home. The fact is Sessions really had no choice. Although in Trump-world things often seem stood on their head, rules, after all, are rules and, as the nation's chief law enforcement officer, Sessions, maybe more than anyone, had to toe the department line.
Back, for a moment to the Mueller investigation. What is it really about?
A little context is in order.
Although it was little known at the time, the FBI's original investigation into a suspected Russia-Trump link began in the summer before the 2016 campaign. Not long after the election, then-FBI Director James Comey publicly confirmed the bureau's investigation of connections between Trump associates and the Russian government.
On May 9, 2017, Trump fired Comey. On May 11 of that year, Trump told NBC anchor Lester Holt of Comey's firing: "When I decided to just do it, I said to myself, I said, 'You know, this Russia thing with Trump and Russia is a made-up story; it's an excuse by the Democrats for having lost an election that they should have won.'"
One thing led quickly to another.
Before going into all that, however, it is worth noting that the FBI operates under the jurisdiction of Department of Justice. As such, the FBI reports to the Attorney General (as well as the director of national intelligence).
Sessions recused himself.
Deputy Attorney General Rod Rosenstein stepped up to the plate and appointed Robert Mueller to serve as special counsel for the United States Department of Justice. In such capacity,
Mueller oversees the investigation into "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump, and any matters that arose or may arise directly from the investigation."
Apoplexy and consternation
This is a broad mandate that has — to say the least — caused the president deep apoplexy and consternation.
With all of this in mind, what exactly is recusal?
In a sense, it is a way of dis-inviting someone from the goings-on.
"Recusal" (more formally, "recusation") is the process by which a party is disqualified (or disqualifies himself) from involvement in a matter owing to some "interest" (or sometimes, the perception of an interest) or prejudice (or the perception of the same) in the matter under consideration.
In legal proceedings, recusal occurs when a judge is disqualified (or disqualifies herself) from hearing a lawsuit because of an "interest" in the matter being tried.
A quick example may help. Say a particular judge owns a share of stock in a small corporation and that corporation is being sued.
Recusal in such circumstance would likely be appropriate, the natural instinct (or at least perception) being that the judge might tilt in favor of the corporation in order to protect her personal, not the public weal.
At law, as in Washington, recusal means, (whether voluntarily or involuntarily), your dance card to the gala has been revoked.
It is a device by which the integrity of the court or certain institutions is preserved and insures that justice has its best chance of being fairly served.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.