Recused And Accused: Critics Say Sessions Should Have Stayed Out Of Comey Firing

May 12, 2017

President Trump now says he made the decision to fire FBI Director James Comey on his own.

That's a shift from the original White House statement, which said the president acted on the recommendation of Attorney General Jeff Sessions.

Sessions' role in Comey's firing has raised eyebrows, since the attorney general promised months ago that he would steer clear of any investigation related to the presidential campaign.

"Attorney General Sessions should not have had any involvement in this decision at all," said Sen. Al Franken, D-Minn. "He recused himself. And yet he inserted himself in this firing."

Sessions's recusal came back in March, after it was revealed that he'd misled senators, including Franken, about his contacts with Russian Ambassador to the U.S. Sergey Kislyak. Sessions insisted those contacts were innocent. But with the FBI investigating Russian meddling in last year's election and possible ties to the Trump campaign, Sessions promised to keep his distance.

"I have now decided to recuse myself from any existing or future investigations of any matter relating in any way to the campaigns for president of the United States," Sessions said.

Legal experts say that recusal was appropriate, given Justice Department rules against taking part in an investigation involving close associates.

"Because he was an early supporter of President Trump, obviously he was nominated to the office he holds by President Trump, he has the kind of personal and political relationship that the recusal regulation does pertain to," said John Q. Barrett, a law professor at St. John's University.

A Justice Department spokesman argues that recusal did not bar Sessions from weighing in on the decision to fire Comey.

"The recommendation to remove Director Comey was a personnel decision based on concerns about the effectiveness of his leadership," spokesman Ian Prior wrote in an email. "The recommendation had nothing to do with the substance of any investigation."

That argument doesn't sway Barrett, a former Justice Department lawyer who served as associate counsel in the Iran Contra investigation.

"The problem is you can't sort of say, 'I'm changing the Director of the FBI for B through Z' and pretend there's no A involved here. A is this investigation," Barrett said.

He argues Sessions should not be involved in choosing a new director for the FBI, and suggests the safest course might be to leave Acting Director Andrew McCabe in place until the campaign probe is completed.

Other legal experts disagree.

"The question of Mr. Comey's ability to lead the FBI going forward and to maintain public confidence is not the same as the question of how the existing and future investigations of the presidential campaigns should be conducted," wrote Bruce Green of the Louis Stein Center for Law and Ethics at Fordham University Law School. "The [attorney general's] recusal did not explicitly cover this and, in any event, it was up to the AG to interpret the scope of his own recusal."

White House spokeswoman Sarah Huckabee Sanders made a similar case.

"Look, the FBI is doing a whole lot more than the Russia investigation," Sanders said. "That's probably one of the smallest things that they've got going on their plate."

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