If the report is accurate, Mueller is looking at a possible obstruction of justice claim based on conduct over a substantial period of time — from Trump’s failed effort to extract a pledge of loyalty from former FBI director James B. Comey, to asking Comey to lay off fired national security adviser Michael Flynn, to Comey’s firing, to Trump holding a threat of imaginary “tapes” over Comey’s head, to drafting on Air Force One a phony explanation of the June 2016 Trump Tower meeting. Pushing for Sessions to reverse his recusal, like any other single action, is unlikely to support an obstruction charge. However, the pattern of conduct is powerful evidence of Trump’s attempt to control and defang an investigation.
“The question of recusal was not a close one under the applicable federal law, which requires any DOJ lawyer who was part of a campaign to step away from an investigation of that campaign,” former White House ethics counsel Norman Eisen tells me. “That applies equally to the most junior line attorney and to the AG. Sessions did the right thing to follow the advice of his ethics advisors and recuse.” He adds, “It is still more evidence of his fealty to the rule of law as he sees it that Sessions refused to bow to the will of the president and ‘unrecuse’ (something I have never heard of in almost 30 years of studying and practicing criminal and ethics law).” He commends Sessions as a “tower of integrity when it comes to resisting the president’s efforts to undermine the Russia investigation” and concludes that “this story, if true, demonstrates yet again [Trump’s] utter disregard for law and ethics and may serve as more evidence that he with corrupt intent repeatedly attempted to block that investigation. We have a name for that, if proven: obstruction of justice.”
Put differently, Trump’s fight to have his own Roy Cohn, running interference for him at the Justice Department and turning down the heat in the Russia investigation (if not ending it altogether), is reflective of his corrupt intent, a critical element of an obstruction charge. He was frantic to have someone on the inside to keep the investigators at bay. “I would guess that Mueller is less interested in this episode as the guilty act, and more interested in how it shows a pattern of corrupt intent,” opines Fordham law professor Jed Shugerman. He adds: “Repeatedly pushing Sessions to unrecuse is some of the evidence a prosecutor would use to give context of corrupt intent to those other more concrete obstructive acts. But there probably was sufficient evidence of corrupt intent already.”
If Sessions is a central witness in the probe, one can hardly question the appropriateness of Sessions’s recusal. He cannot be both a key witness and the investigation’s supervisor. Ironically, Sessions also is the one Republican whose credibility cannot readily be called into question by Trump’s base. (Moreover, Sessions might have further testimony to offer regarding the cover story cooked up to explain Comey’s firing.) “It is little wonder then that Special Counsel Mueller is looking at this episode as part of a much larger pattern unseen since Nixon of a president acting to impede the law rather than enforce it,” says Eisen.
The fight over Sessions’s recusal marks another instance in which the White House has reached down into the Justice Department in ways no other administration has done. “Asking Sessions to ‘unrecuse’ himself despite his conflict of interest, in palpable violation of the Department of Justice recusal rules, can only have one purpose: the corrupt obstruction of justice,” says constitutional scholar Laurence Tribe. “The purpose of pressuring Sessions is, of course, to put the work of the Special Counsel under the supervision of someone willing to do Trump’s bidding rather than under the supervision of [Deputy Attorney General Rod J.] Rosenstein, who has been less loyal to Trump than to the truth and the rule of law.”
Trump has crossed the line time and again for the purpose of throwing suspicion on investigators, investigating political enemies, providing highly confidential information to his congressional allies and seeking to protect himself and his associates. Trump, in his attack on the democratic norms that keep our criminal-justice system free from political taint, surely has no peer.