I have argued that Attorney General Jeff Sessions’s recusal from the so-called Russia investigation was a mistake. The attorney general’s testimony before the Senate Intelligence Committee on Tuesday afternoon bolstered this conclusion.
Sessions says that he recused himself, on the advice of career ethics experts at the Justice Department, because he thought this was required by the federal regulation controlling “Disqualification arising from personal or political relationship” (28 CFR Sec. 45.2). But judging from the public testimony that former FBI director James Comey has given about the investigation into Russia’s election-meddling, the regulation did not mandate recusal.
Section 45.2 states that an official is disqualified from “a criminal investigation or prosecution” if he has a personal or political relationship with a “subject of the investigation or prosecution,” or with a person or organization whose interests would be affected by the outcome “of the investigation or prosecution.” (Emphasis added.)
The probe of Russia’s interference in the 2016 presidential campaign is not a criminal investigation or prosecution. Moreover, when the reg speaks of the “subject of the investigation or prosecution,” it is using “subject” as a criminal-law term of art. A “subject” is a person or entity whose actions are being examined by a grand jury with an eye toward a possible indictment. There are no “subjects” in that sense in a counterintelligence investigation because the objective is not to build a criminal case and there is no grand jury.