The effort to convince Sessions not to recuse himself only adds to the concerns over obstruction and other allegations. The use of the White House counsel is also troubling. It is not clear what the grounds were for McGahn to encourage Sessions not to recuse himself. As noted above, I viewed the necessity of recusal as clear and compelling
. It is highly problematic for McGahn to seek to block the decision under direct orders from someone who is a possible target of the investigation. Most lawyers would have balked at the order and cautioned their client on the legal risks of such an intervention. The allegation reinforces concerns over McGahn’s role as White House counsel in maintaining ethical lines.
In fairness to McGahn, he might have been trying to defuse an explosive situation in the Oval Office by appeasing the President. Reports indicate that McGahn quickly backed off when Sessions said that he was following the advice of his ethical advisers. It is not clear how much McGahn knew. However, I still believe that the White House should have stayed well clear of the decision making at the Justice Department on both the investigation and the recusal.
Moreover, the impropriety of the alleged intervention turns significantly on the order of the events. If McGahn was aware that Sessions had already made the decision to recuse himself, the effort to convince him to change his mind is inappropriate in my view. If McGahn was only aware that Sessions was weighing his possible recusal, it is less alarming that he wanted to discuss the issue and its implications with the Attorney General. It would still raise some concerns but it would not be as problematic as carrying out an order from a president to pressure the Attorney General to reverse his decision. The White House Counsel has a legitimate interest in who will be conducting or supervising an investigation of the President. It would be much better to pursue such questions through aides to avoid even the appearance of pressure from the White House. Once a decision has been made, it becomes much more problematic to have the President dispatch a high-ranking official to try to talk Sessions out of an ethical determination.
That does not mean that Trump has committed a crime or that this was an effort to conceal a crime. However, it certainly does not help. Trump has long treated litigation as an extension of business. This alleged action was taken around the same time of the other inappropriate comments alleged in meetings with Comey and others over the Russian investigation. The President may have learned from those missteps. The actions taken during that period ultimately compelled not only the appointment of a special counsel but magnify the legal risks for the President and his Administration. Had Comey been fired at the outset of the Administration or left in office for the conclusion of the Russian investigation, it would likely be over by now for the President.
The decision of Sessions was the correct one on both an ethical and political basis. The best thing for Trump was to remove any question of political interference and obstruction. Otherwise, any investigation clearing the President would be marred by lingering questions and uncertainties.
In the same vein, the suggestions of Sessions being fired are mystifying. Just as the firing of Comey made the situation exponentially worse, the firing of Sessions would reinforce allegations of obstruction and push the controversy into an even more precarious stage for the President.