Politics, Ethics, Recusal, and the Rule of Law

As many of you remember, we’ve been here before. In October, 1973, President Nixon ordered Attorney General Elliot Richardson to fire the special Watergate prosecutor, Archibald Cox. Richardson refused to do so and resigned, as did his deputy, William Ruckelshaus. Third in line was Solicitor General Robert Bork, and he did the President’s bidding.

A lot of good it did Nixon. He appointed a Texas lawyer named Leon Jaworski, who turned out to be just as bad (from Nixon’s point of view) as Cox. He subpoenaed the “White House tapes,” Nixon objected, and the rule of law took over. The Supreme Court ordered Nixon to turn over the tapes, and in less than a year he resigned, taken down by his own words.

According to the CIA and numerous other government intelligence agencies, Russian hackers tried to interfere with the 2016 presidential campaign. Over the last few months, word has leaked out of meetings between Russian officials and members of the Trump campaign, including former national security advisor Michael Flynn, Attorney General Jeff Sessions, campaign manager Paul Manafort, and the President’s son and son-in-law, who took a meeting at Trump Tower with a Russian lawyer.

This is not conjecture or fake news. Donald Trump, Jr. released the emails between him and the intermediary who brokered the meeting. The point was to get dirt against Hillary Clinton, and Donald, Jr., acknowledges that the meeting was a “waste of time” because the Russian lawyer didn’t provide any useful information.

So now we have the “Russian investigation,” which asks what did the Russians do and whom did they do it with? It sounds like what Senator Howard Baker asked during the Watergate investigation: “What did the President know and when did he know it?”  As in 1973, we have a special counsel whose job it is to uncover the truth. And, once again, we may be witnessing a conflict between the President and the rule of law.

In my view, the Attorney General had no choice but to step aside, as a matter of both ethics and law, based on his involvement in the Trump campaign and his own conversations with Russian officials. President Trump might have spoken up for Sessions, praising him for doing the right thing. Instead, he told the New York Times last month that if he had known Sessions was going to recuse himself from the investigation into Russia’s election meddling, he wouldn’t have appointed him in the first place.

That assumes, of course, that Sessions would have agreed that with the President’s “witch hunt” opinion or, at least, that he would not have appointed Robert Mueller, as did the Deputy Attorney General. Now we hear daily speculation about Mr. Mueller’s job security.

Whether or not Sessions remains in his job, firing Mueller isn’t so simple. The federal regulations require a showing of “good cause,” such as misconduct, dereliction of duty, incapacity, or conflict of interest. Anyone who knows Robert Mueller knows that he would never come close to such misconduct. (Disclaimer: He and I were law partners in the 1980s. He told me, back then, that his ambition in life was to become the Director of the FBI.)

All three branches of government play a role in maintaining the rule of law, and Congress now seems ready to do its part. Specifically, under a bi-partisan bill filed early this month, the president’s power to terminate the special counsel would be subject to judicial review, with Mueller remaining on the job during the process. In other words, as with legislation about the Russia sanctions, Congress seems ready to assert itself not only as a co-equal branch of government but as a meaningful “check” on the executive branch.

The bigger picture here is reassuring. Despite the turmoil of recent months, the Constitutional structure of checks and balances remains in place. And in the United States, unlike Russia, the rule of law still applies, even to a president.

2017-08-15T10:41:09+00:00 By |