The Propriety of the Sessions Recusal and the Special Counsel’s Jurisdiction

Andrew McCarthy has been arguing that the Sessions recusal and the appointment of the Special Counsel were not justified. Or to put it more precisely, under proper procedures, this recusal and appointment would have been much narrower.

While one justification of the appointment and recusal is that there was an investigation into the Russian connections with the Trump campaign, McCarthy argues that the investigation was merely a counterintelligence investigation and that such investigations involve lawyers in a very limited way. The regulation governing recusals and appointment of special counsels involve criminal investigations, not counterintelligence investigations.

As a result, McCarthy argues that Attorney General Jeff Sessions should not have recused himself from the entire Russian counterintelligence investigation, but only the portion involving a criminal investigation—“the false-statements investigation of Flynn and the obstruction investigation of Trump.” While the Wall Street Journal argues that the counterintelligence investigation was likely to lead to a criminal investigation, McCarthy responds that Sessions could have decided whether to recuse himself and, if so, on what matters, once the investigation had proceeded to a criminal investigation.

McCarthy also argues that the special counsel’s jurisdiction would have been far narrower had the distinction between criminal and counterintelligence investigations been appreciated. Under the special counsel’s existing jurisdiction, Robert Mueller has been given extremely broad jurisdiction to criminally investigate based on the original scope of the counterintelligence investigation, as to “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” McCarthy contends that the jurisdiction should have been limited to an area where there is reason to believe crimes were committed and therefore a criminal investigation is warranted.

McCarthy’s argument seems technical, and so it is. But so what?  Technical or legal points count. And it is significant if the recusal of Attorney General Sessions and the appointment of a special counsel with an enormous jurisdiction are not what the law anticipated or required.

McCarthy’s argument, though, is not merely technical. It is also functional. He argues that there is less of a conflict involving the Justice Department from a counterintelligence investigation and therefore there is a reason not to recuse or appoint special counsels in these cases.  And certainly he is right that a criminal investigation into the entire scope of the counterintelligence investigation is an enormous expansion of government power into an area that may not warrant it.

Of course, it might be argued from an alternative functional perspective that the Justice Department could appoint a special counsel even in cases not covered by the special counsel regulation. And it might be further contended that a criminal investigation into the Trump campaign connections with Russia was necessary, especially after Trump fired FBI Director James Comey, because there was an appearance of wrongdoing.

Perhaps, but the appearance of wrongdoing is not the legal standard and I would argue it should not be the standard for appointing a special counsel with nothing else to do but engage in a criminal investigation. But even if one accepts an appearance-of-wrongdoing standard, it is not clear that this standard was met. The connections between the Russians and the Trump campaign, as revealed by the press, have not shown much if any illegal action. And Trump’s decision to fire Comey may have been due to Comey’s refusal to announce to the public that Trump was not personally under investigation (or the belief that the investigation was unjustified). While others may have a different view of the facts—and no doubt this is not the media or Democrats’ narrative—this is certainly one reasonable view of the facts.

Reader Discussion

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on July 31, 2017 at 12:52:47 pm

I am not an attorney,, thou following many of these events, that lead to nothing just a cry foul from the left attacking the structure of the new administration. All of it deals w/a bunch of lies promoted by the Clinton campaign to smear Trump and his cabinet. Sessions should have waited to recluse himself until he had a good idea of what was going on. He was not prepared for those in the left crying foul. One big mistake? Not only Mr. Trump is mad, so are many voters that thought that he had a pair. Moving forward Muller and his clan is a total waste of taxpayer funds, and a move to stall DC from doing it's work perfectly done by Scumbag Schumer and his acolytes. When are the republicans going to learn how to fight the left in this country.

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Abelardo Aguilu
on August 01, 2017 at 12:06:42 pm

And now it comes out that the prime reason for appointing the Special Counsel in the first place -- the alleged hacking of the DNC on July 5, 2016 -- was an insider download with doctored "evidence" to make it appear to be a foreign hack. "Forensic studies of “Russian hacking” into Democratic National Committee computers last year reveal that on July 5, 2016, data was leaked (not hacked) by a person with physical access to DNC computers, and then doctored to incriminate Russia." See https://consortiumnews.com/2017/07/24/intel-vets-challenge-russia-hack-evidence/ quoting a recent memorandum by Veteran Intelligence Professionals for Sanity (VIPS).

Could Robert Mueller could soon become material witness or a person of interest in a criminal inquiry?

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John Schmeeckle
on August 14, 2017 at 23:06:45 pm

lOW, he got Clinton'd. l guess what goes around comes around....

My government has lied to me all my life. Julian Assange has been straight for ten years. Barring compelling evidence, l refuse to believe that "Putindidit." That having been said, Mueller is closing in on money-laundering, and NY might beat him to it.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.