Advocates and opponents of birthright citizenship are stuck in a dilemma: originalism binds us to accept it, nonoriginalism offers room to deny it.
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.