It is no surprise, but it is still a shock, to see how little President Trump understands about the independence of the Justice Department and the importance of the rule of law.
Trump’s jaw-dropping interview with the New York Times featured an unprecedented and unvarnished invitation to Attorney General Jeff Sessions to quit. Don’t let the door hit you on your way out, Jeff, Trump might as well have said.
Sessions’s sin is failing to do his job, which, as Trump sees it, is not overseeing the impartial administration of justice but assiduously protecting the legal interests of Donald J. Trump. Thus, in Trump’s view, it was “very unfair to the president” — actually, “extremely unfair, and that’s a mild word” — for Sessions to have recused himself from overseeing the department’s probe into Russian meddling into the election and the possible role of the Trump campaign.
Let us review the facts and the law. The facts: Sessions was the first senator to endorse Trump and served as a close campaign adviser. That is conflict enough, but he piled conflict on conflict by meeting during the campaign with Russian Ambassador Sergey Kislyak and then omitting to inform the Senate Judiciary Committee of the meetings when questioned about it.
The law: Justice Department regulations provide that “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship” with the subject of the investigation or “any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.” A political relationship “means a close identification with an elected official … arising from service as a principal adviser thereto.”
So Sessions’s situation and the question of whether he could oversee the Russia investigation doesn’t present a close call. As Sessions told the Senate Intelligence Committee last month, “That regulation states, in effect, that department employees should not participate in investigations of a campaign if they have served as a campaign advisor.” In other words, it’s a no-brainer, at least if you understand basic concepts of conflict of interest. What Trump perceives as betrayal is Ethics 101.
Trump’s related argument — that Sessions at the very least should have given him a head’s up in advance so that he could have picked a different attorney general at the start — suffers from a similar flaw. A different attorney general might not have needed to recuse himself, but in the end that attorney general would have come to the same conclusion as the deputy left acting in Sessions’s place, that a special counsel was required to oversee the investigation.
Again, the law: Justice Department regulations require appointment of a special counsel when the attorney general, or someone acting in his stead, determines that investigation through the normal departmental processes “would present a conflict of interest for the Department.” How could this not be true of the Russia matter? Even leaving aside the question of whether the president himself is under investigation, it involves the president’s campaign and closest advisers, including relatives. The special counsel regulations were not put in place to torment presidents but to reassure the public that, even in politically sensitive cases, justice would proceed impartially and unimpeded.
Which raises the question of what Trump hoped to achieve by taking his beef against Sessions public. What does the president imagine would happen if, as he seems to hope, Sessions goes and, along with him, Deputy Attorney General Rod J. Rosenstein? In confirming their successors, the Senate, even this Senate, would no doubt want some assurance that special counsel Robert S. Mueller III’s investigation would be allowed to continue unimpeded. When the Senate confirmed Elliot Richardson as attorney general in the midst of the Watergate scandal in 1973, it conditioned approval on Richardson’s commitment to appoint, and protect, a special prosecutor. At least a few Republican senators ought to be willing to make their support for a Sessions replacement contingent on similar backup for Mueller.
Who remains Trump’s chief problem, and for that reason perhaps his ultimate target. “He was up here, and he wanted the job,” Trump said of interviewing Mueller about the possibility of resuming his former role as FBI director. After Mueller was named special counsel instead, “I said, ‘What the hell is this all about?’ ” Trump said. “Talk about conflicts. But he was interviewing for the job. There were many other conflicts that I haven’t said, but I will at some point.”
This is the essence of Trump — exquisitely sensitive to conflicts, real or perceived, when they may work against him; resolutely obtuse to the imperative of independence when unquestioning loyalty better serves his needs.