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Russia-Trump ties: Is Sessions' recusal enough?

Still needed, some experts say, is a special prosecutor or bipartisan commission to investigate contacts between officials from Russia and the Trump campaign.

By Henry Gass, Staff writer

Attorney General Jeff Sessions' decision to recuse himself from investigations of Russian contacts with Trump campaign officials is a step in the right direction, some legal experts say.聽

But more needs to be done for a聽responsible investigation into Russia, the election, and the Trump campaign, they add.

An investigation needs a greater degree of independence 鈥 perhaps through a special prosecutor, used during Watergate and again in the Clinton 鈥淲hitewater鈥 scandal,聽or a bipartisan commission, such as the聽9/11 Commission.

Reports suggest that Mr. Sessions twice met with the Russian ambassador to the United States last year 鈥 information he did not disclose during his Senate confirmation hearings in January. On Thursday, Sessions announced that聽it would be 鈥渞ight and just鈥 to recuse himself in matters 鈥渢hat deal with the Trump campaign.鈥

He added: 鈥淚 have now decided to recuse myself of any existing or future investigations of any matter relating in any way to campaigns for president of the United States.鈥 Some legal analysts pointed out that his wording about the campaign made it unclear if Sessions would recuse himself from investigations involving Trump's activities as president. [Editor's note: This sentence was added to explain the contention by some that the attorney general's recusal was partial.闭听

A recusal from the nation's top law enforcement official is rare in these kinds of investigations. But allegations of Russian interference in the 2016 campaign have beset President Trump for months.聽

Michael Flynn, the president's former national security adviser, resigned last month after reports that he had discussed Russian sanctions with the same ambassador,聽Sergey Kislyak, before Trump took office.

In a press conference Thursday, Sessions said that he had been considering whether to recuse himself before聽The Washington Post聽 reported聽news of his meetings with Mr. Kislyak.

He also said he was taken aback during his confirmation hearings by a question from Sen. Al Franken (D) of Minnesota about contacts with Russian officials. At the time, Sessions said he did not have any such contacts. At Thursday's press conference, however, he acknowledged he should have 鈥渟lowed down and said I did meet one Russian official a couple times.鈥

Multiple investigations

Multiple investigations are ongoing. An interagency group including the Federal Bureau of Investigation, the Central Intelligence Agency, the National Security Agency, and Treasury Department has been聽investigating communications聽between Trump campaign officials and Russia for months, perhaps since as early as聽April 2016, according to reports.聽Separately, three Senate committees are delving into different allegations of Russian interference in the election.

But there is a sense that neither Sessions鈥 recusal nor the current investigations are sufficient. Sessions鈥 decision 鈥渋s incredibly important, but I don鈥檛 think it鈥檚 enough,鈥 says Jonathan Smith, a lawyer in the Justice Department鈥檚 Civil Rights Division during the Obama administration.

鈥淚t鈥檚 critically important that there鈥檚 an independent review, not just of Sessions but of the entire questions around [Trump campaign] contact with Russians during the campaign,鈥 he adds.

Special prosecutor

Some lawmakers from both parties聽are calling for聽a special prosecutor.

Such an approach has proved effective in the past. But the attorney general has traditionally had significant authority over the appointment and handling of special prosecutors.聽

On one hand, 鈥渟pecial counsels鈥 are the way for the Justice Department to handle 鈥渕atters which may raise a conflict of interest鈥 for the department, according to a 2013 Congressional Research Service (CRS)聽report. Yet the special counsels are 鈥渁ppointed by 鈥 answerable to, and may have their prosecutorial or investigative decisions countermanded by鈥 the attorney general, it added. Some investigative actions, like wire intercepts and subpoenas, would require prior approval from the attorney general, according to聽another CRS report.

In the case of a recusal of the attorney general, the acting attorney general would be in charge of appointing a special counsel. But the second- and third-highest ranking officials in the Justice Department have not yet been confirmed by the Senate.

Commission or select committee?

Others are calling for a broader approach. One idea is an independent,聽bipartisan commission聽in the style of the 9/11 Commission. Another is the creation of a temporary investigative select committee within Congress.

鈥淭he essential problem is that there is no current congressional mechanism with the investigative scope, staffing, and will to answer these questions in a serious fashion,鈥 write聽Susan Hennessey and Benjamin Wittes聽on聽the Lawfare blog.

They argue for a select committee, suggesting that a 9/11-style commission would be too grandiose and ill-fitted for the current partisan environment.聽聽

鈥淕iven the palpably toxic atmosphere, a serious and credible investigation into Trump and his associates will 鈥 be met with substantial resistance by the White House and administration appointees,鈥 they write.

While a select committee would be vulnerable to the political whims of congressional leaders, it would provide the necessary flexibility and authority to carry out a fair investigation, they suggest.聽

And unlike a special prosecutor, it would be above the appearance of influence by the Justice Department.

鈥淪essions himself may be implicated in the exact subject matter of what this investigation would entail,鈥 says Kami Chavis, a former assistant US attorney and now director of the Criminal Justice Program at Wake Forest University School of Law.

鈥淚n the interest of transparency, and in order for us to have trust and confidence in that investigation, [the investigation] should happen outside of the Justice Department.鈥