Attorney General William Barr will not recuse himself from overseeing the special counsel’s Russia probe after consulting with senior ethics officials, the Justice Department said Monday.
The officials advised Barr against recusal from Robert Mueller’s investigation into possible coordination between Russia and Donald Trump’s presidential campaign, Justice Department spokeswoman Kerri Kupec said.
“Consistent with that advice, General Barr has decided not to recuse,” Kupec said in a statement.
To anyone familiar with the rules of recusal, this comes as no surprise at all. Recusals are last-resort steps to avoid significant conflicts of interests in investigations (and in judicial actions) rather than a normal hygienic measure. The Department of Justice and its superior officer in the Attorney General have a responsibility to act as the investigative-prosecutorial agency in the federal government, and those powers should only be farmed out when absolutely necessary.
Jeff Sessions felt compelled to recuse because he took significant part in the campaign under investigation. The DoJ’s ethics officers apparently agreed, and Sessions’ misstep in his confirmation hearing about contact with then-Russian ambassador Sergei Kislyak made it even more necessary politically, if not legally or ethically. Trump vehemently disagreed with that decision and publicly complained about it for more than a year, which has complicated the issue for Sessions’ two successors, Matt Whitaker (temporarily) and now William Barr.
Democrats will likely scream bloody murder over this announcement, but they will be able to muster no worthwhile objection over it. Barr didn’t take part in the campaign, which means he has no conflict of interest. Trump appointed him to the position, but all AGs are appointed to the office by presidents that might come under investigation. That’s not the kind of personal conflict of interest that should trigger recusals, in the same way that a judge appointed by Trump needn’t recuse him/herself if someone sues Trump over administration policy or even over his private-sector business affairs. Only if the judge in question took part in those cases would recusal be necessary.
Nor is the fact that Barr expressed an opinion in a letter to Sessions about the constitutional issues of Mueller’s probe into obstruction of justice sufficient for a recusal. Barr’s entitled to his opinion, especially as a once-and-future AG. Democrats in Congress may not like Barr’s opinion, but they don’t appoint the AG, and it doesn’t impact their own ability to pursue those legal theories on their own. It doesn’t create any kind of conflict of interest that rises to the level of recusal, or anywhere near it.
In fact, the whole special-counsel law itself is nothing but a dodge for Congress to exercise the only proper constitutional oversight of the executive branch. If Congress did its job properly and credibly, Mueller wouldn’t have been necessary at all, even to the extent that a special counsel was necessary in this case, or any other.
At any rate, the table is now set for Barr’s singular moment in this term. Shortly, Barr will have to make a decision on releasing the Mueller report, assuming Mueller produces anything substantial worth releasing at all:
Newly installed U.S. Attorney General William Barr must walk a political and legal tightrope in deciding how much of Special Counsel Robert Mueller’s report on Russia’s role in the 2016 election to disclose, balancing competing demands from President Donald Trump and congressional Democrats, legal experts said.
The decision presents Barr, a veteran Washington insider, with his first major test since becoming the top U.S. law enforcement official last month, a position fraught with peril. Trump fired Barr’s predecessor Jeff Sessions in November after complaining for months over the decision by Sessions to recuse himself from overseeing the Russia investigation.
“I think Barr is in a terrible position from the standpoint of having two masters to please, each of which has a very different desire,” said Michael Zeldin, a former federal prosecutor. “He has a political nightmare on his hands.”
Give Barr credit for sticking to the law and to the institutions in keeping that decision in his hands. Recusal must have looked aaaawwwfullllllyyyy tempting.