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AG Jeff Sessions

Trump is Right—AG’s Recusal Situation Unfair to the President


the aim of the impeachment process must be as much to exonerate as to accuse, in strict accordance with the facts and applicable laws, including of course the Supreme Law of the Land. (Alan Keyes, Collusion?—The House should act to clear the air)

Only one Democrat (Joe Manchin III, W. Va.) voted to confirm President Trump’s appointment of Jeff Sessions to be Attorney General of the United States. Sessions was one of the GOP’s most reliably conservative Senators. His stand on border and immigration controls, as well as tough vetting of entry into the United States, signaled his firm resolve to reverse the Obama administration’s debilitating policies. This was among the most important reasons Democrats fiercely opposed Senator Sessions. They also expressed doubts that he would stand up to President Trump to demand respect for the laws of the United States, including the Constitution. (This was almost comically ironic, given the aid and comfort Attorney General Lynch gave to Obama’s anti-constitutional abuses of Executive power.)

GOP Senators who supported his nomination, including Senator Mitch McConnell, emphasized that he was a “well-qualified colleague with a deep reverence for the law. He believes strongly in the equal application of it to everyone.” Such statements seemed verified by the way he handled himself when public reports raised questions about his interactions with Russian Ambassador Sergey Kislyak. Apparently without consulting President Trump, he recused himself from any involvement in matters related to the investigation of Russia’s alleged efforts to influence the outcome of the last Presidential election. This included allegations of some sort of improper collusion with Russia by members of Trump’s team of advisors.

Anti-Trump Democrat/leftist groups, like Common Cause expressed outrage, against AG Sessions. They claimed that Mr. Sessions purposely lied to Congress when he omitted to mention his alleged conversations with the Russian Ambassador. Now President Trump has suggested that he’s angry about being left in the dark when Attorney General Sessions recused himself from oversight of the investigation into Russia’s alleged forays into our politics. A New York Times story reports that, in an interview Trump said:

“Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job and I would have picked somebody else,”

This is reminiscent of the flap that led to the departure of President Trump’s first National Security Advisor, Michael Flynn. Flynn’s appointment was seen as a sign of President Trump’s resolve to pursue policies reversing the Obama Administration’s backward approach to defending America’s interests in the international arena. Flynn departed after admitting that he “misled Vice President Mike Pence on the contents of phone calls Mr. Flynn placed to the Russian ambassador.”

President Trump may be right when he says that the whole situation is unfair to the President of the United States. Though some see his statement as a demand for personal loyalty, it may just as well be a concern with the President’s ability to do perform his duties under the Constitution. As a key member of the President’s Executive body, the Attorney General is supposed to act with Presidential authority and supervision. But when an investigation directly touches the President’s person, as Chief Executive how can he avoid the imputation of some conflict of interest. Therefore, the AG’s recusal has implications which the President should properly have been given the opportunity to consider beforehand. It carries the implication that some conflict of interest is apprehended. AG sessions may contend that he is the only person affected by that implication, but since the abrogation of Executive authority is involved, shouldn’t the Chief Executive be the one whose judgment prevails?

In this respect, the situation of an Executive called upon to investigate him or herself may be inherently unfair. Right now, for example, some effort is being made to resurrect the argument that a sitting President can be personally indicted for trial in the ordinary courts. But this implies the possibility of power harass the Chief Executive with energy consuming indictments, crippling his or her ability to focus effectively on official duties. Could this be why the Framers of the U.S. Constitution assigned exclusive responsibility for pursuing accusations of misconduct against the President’s person to the House of Representatives? There is also the problem, which I have elsewhere discussed, of the President’s pardoning power. In all cases but that of impeachment that power allows him to nullify penalties of law otherwise validly enforced under the Constitution. This gives him the leeway to vitiate the enforcement of all subpoenas, whatever their source. Thinking this through, we see the wisdom involved in the Constitutional provision that makes accusing the President the responsibility of the most frequently elected chamber of the Congress. Absent dereliction by the majority of the House, this allows for investigation of accusations; evaluation of their validity; and a resolution to dismiss them as unwarranted, or take them as the basis for impeachment. Either way, the result would reflect the ultimate Constitutional sovereignty of the people, clearly taking into account the intrinsically political nature of the subject matter.

The people who elected Donald Trump should be especially concerned about the ongoing derogation of the House’s initiative and responsibility in this regard. It directly erodes the self-government of the people, thwarting their will when a recently elected President is kept from following up the fresh mandate they have given; or else preventing their self-defense when a sitting president abuses Executive power to circumvent the elected representatives of the people, as Obama frequently did. Considered in this aspect, events such as AG Session’s recusal are not only unfair to the President, they are unfair, and even dangerous, to the liberty (i.e., rightful self-government) of the people of the United States. As things now stand, the President is, therefore, not Constitutionally to blame for what transpires. Responsibility lies with the majority in the House of Representatives. They should do their duty—which is to take the initiative for handling these accusations—so that, unless and until he is formally impeached, the President can remain focused on doing his.


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