As Attorney General Jeff Sessions vets candidates to lead the FBI, the Justice Department won’t say if he’ll step away from any part of the hiring process, given his pledge to recuse himself from matters related to the 2016 campaign.
Who President Trump selects to run the FBI, and how much that person is perceived to be independent from the White House, especially on the high-profile investigation into Russian influence in the election, will be a source of enormous scrutiny in the coming weeks.
A Justice Department official said that Sessions on Wednesday interviewed four candidates to serve as interim FBI director, and there could be more. On Tuesday night, when former FBI Director James Comey was fired, Sessions also spoke with acting FBI Director Andrew McCabe, who was Comey’s number two and is under consideration as well, the DOJ official said. The interim director will lead the agency until Trump announces a nominee.
Sessions, a close adviser to Trump during his run for president, pledged in March to recuse from investigations related to last year’s campaign. A DOJ spokesman on Wednesday declined to comment when asked if that policy would apply at all to the hiring process for the interim FBI director or the future nominee.
Legal ethics experts told BuzzFeed News that, at a minimum, Sessions should not be involved in conversations with, or about, a candidate that relate to the FBI’s probe of Russian interference in the election. Kathleen Clark, a law professor at Washington University School of Law, went even farther, saying that Sessions should recuse entirely from the hiring process — not just because the next director will take charge of the Russia investigation, but because Trump, in his letter firing Comey on Tuesday, referenced the investigation.
“I think under these circumstances, where Trump has confirmed the connection between Comey’s firing and the Russia investigation, there’s no way that Sessions can participate in any vetting of a future FBI director without violating his recusal commitments,” Clark said.
In a dismissal letter that the White House made public on Tuesday, Trump told Comey, “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.”
Sessions in March announced a recusal policy that legal ethics experts say was broader than required by the Justice Department. The DOJ regulations say that prosecutors can’t participate in any criminal investigations and prosecutions if they have a political relationship with the subject of the case, or someone who would be directly affected.
Sessions’ own policy, however, didn’t limit his recusal to criminal investigations, nor did he limit it to matters related to Trump. Instead, he said that he would “recuse myself from any existing or future investigations of any matters related in any way to the campaigns for president of the United States.”
Revelations that Sessions met in 2016 with the Russian ambassador prompted his announcement of the recusal policy. Sessions hadn’t discussed those meetings at his confirmation hearing in January when he was asked if anyone affiliated with the Trump campaign had contact with Russian officials during the campaign; a spokeswoman for Sessions said at the time that he didn’t mislead Congress because he met with the ambassador in his capacity as a senator, not on behalf of the campaign.
Peter Zeidenberg, a former prosecutor in the Justice Department’s Public Integrity Section, which handles public corruption cases, said he didn’t think that Sessions needed to completely excuse himself from vetting FBI director candidates. But it would be “completely inappropriate” for Sessions to be involved in any discussion related to the Russia investigation, he said.
Zeidenberg, who now works at a private law firm in Washington, said he thought Sessions could still be involved in other conversations about a candidate’s experience, philosophy, priorities, and ability to lead a large organization. He was also skeptical that it was possible for Sessions or Rosenstein to have an in-depth conversation about the Russia investigation with a candidate who wasn’t involved in the probe and would lack access to confidential, up-to-date information.
“They can’t have a substantive conversation about the Russia case,” Zeidenberg said.
White House spokeswoman Sarah Sanders on Wednesday told reporters that Sessions should “absolutely” have a role in choosing the next director.
“In terms of whether or not attorney general sessions should have a role, look, the FBI is doing a whole lot more than the Russia investigation,” Sanders said. “I know everybody in this room and probably most of the media around the world would like to think that's the FBI's sole responsibility, but that's probably one of the smallest things that they've got going on their plate and the 20,000 employees that work there.”
A DOJ official said that three of the candidates interviewed on Tuesday were from within the bureau: Michael Anderson, special agent in charge of the Chicago office; Adam Lee, special agent in charge of the Richmond office; and Paul Abbate, executive assistant director for the Criminal, Cyber, Response and Services Branch. The fourth candidate was William Evanina, the National Counterintelligence Executive in the Office of the Director of National Intelligence.
Stephen Gillers, a law professor and legal ethics expert at New York University School of Law, said in an email that he thought Sessions had already violated his own recusal policy in participating in deliberations about whether Comey should be fired. In a memo by Deputy Attorney General Rod Rosenstein dated May 9 that Sessions relied on in recommending Comey’s dismissal, Rosenstein criticized Comey’s public comments last year about the FBI’s investigation into Hillary Clinton’s use of a private email server when she was secretary of state.
Gillers said that Comey’s handling of the email controversy would fall under the category of investigations related to the election. Sessions’ involvement in Comey’s firing threatened the integrity of the Russia investigation, he said.
A DOJ spokesman said in an email that Sessions' recommendation that Comey be dismissed wasn't related to any investigation.
"The recommendation to remove Director Comey was a personnel decision based on concerns about the effectiveness of his leadership as set forth in the Attorney General’s letter. The recommendation had nothing to do with the substance of any investigation," the spokesman said.
But Gillers didn’t think that Sessions would need to recuse entirely from decisionmaking about the bureau’s next director.
“The scope of the recusal … would not exclude the AG from participating in the choice of a successor. Nor should it,” Giller said. “After all, that person will report to Mr. Sessions on everything else DOJ and the FBI do and he or she will need the AG's complete confidence.”
Updated with comment from the Justice Department.