Here is the column:
“I wish I did!” No words should be more unnerving for Donald Trump’s legal team. After a year of investigations triggered by the president’s firing of former FBI director James Comey, Trump still wishes that he had not picked Attorney General Jeff Sessions because Sessions recused himself from the Russia investigation. Indeed, Trump tweeted a quote by former U.S. Attorney Joe DiGenova that the “recusal of Jeff Sessions was an unforced betrayal of the president of the United States.”
The “betrayal” of Sessions was, in fact, one of the few correct moves made by the administration during the first year of this scandal. More importantly, it may prove the one thing that restores part of Trump’s legacy if the investigation finds no criminal conduct. Sessions personifies the rule that no good deed goes unpunished in Washington.
Before his recusal, some of us publicly said that Sessions had no choice ethically but to take that step due to his role in the campaign as well as questions related to his contacts with Russian diplomats. Even Trump’s lead counsel, Rudy Giuliani, admitted this week that he would have had to consider recusal had he been appointed attorney general. Sessions ultimately recused himself after career ethics advisers at the Justice Department concluded that recusal was necessary.
None of that seems to help Sessions with Trump. Recent reports show Trump was irate and wanted to fire Sessions and even tried to dispatch aides to do so. The only reason he did not take that catastrophic step appears to be the refusal of his aides to carry out the order, particularly White House counsel Don McGahn. Still, Trump ordered Sessions down to Mar-a-Lago in March 2017 to berate him and demand that he “unrecuse” himself, a highly inappropriate demand to make of any lawyer, let alone the attorney general of the United States.
Trump appears incapable of forgiving Sessions for taking the clearly, unavoidably ethical path. Even if he is unwilling to see the ethical imperative, he should at least come to see the practical benefit of what Sessions did. By recusing himself, Sessions guaranteed the best case scenario for Trump. If special counsel Robert Mueller concludes there is no evidence of criminal conduct by Trump, Sessions removed any question that his involvement prejudiced or influenced the outcome.
Moreover, if Sessions had, as Trump clearly wanted, barred the appointment of a special counsel and then cleared the president, the legitimacy of this administration would have remained tainted, and impeachment would have become the only avenue to the truth for many citizens. Conversely, if Mueller finds criminal or impeachable acts by Trump, recusal by Sessions was clearly warranted. Furthermore, in an impeachable proceeding, the need for additional investigation is blunted by the long and independent investigation by Mueller.
None of this seems to register with Trump, who blames Sessions for a nightmarish year, even though it is the president’s own conduct that has prolonged and broadened this investigation. If the president had simply fired Comey when he took office or waited until after the conclusion of the investigation, it is doubtful that we would have had the appointment of a special counsel. All of his top aides, with the exception of Jared Kushner, reportedly argued against firing Comey at that time.
Some of us had questioned the basis for a special counsel’s appointment until Trump fired Comey and then told Russian diplomats the next day that the firing took pressure off him. He followed that up with an interview with Lester Holt that included the dumbfounding statement that he had the Russia investigation in mind when he fired Comey. That debacle was not brought about by Sessions or his pesky ethical standards.
In the end, Trump always has had a strong defense against these charges despite his best efforts to convey the contrary. The firing of Comey remains a poor basis for an obstruction charge. There were ample reasons to fire Comey, as suggested by a host of Republican and Democratic former attorney generals and Justice Department officials. Moreover, Trump’s self-immolating statement to Holt stands in contrast to the testimony of numerous witnesses and Comey himself.
All witnesses recount how Trump demanded that Comey make public what he had told numerous people and members of Congress in private that Trump was not a target of the investigation. Trump failed to see why Comey could tell so many people outside of the FBI that fact but refuse to do so publicly. Most importantly, Comey told Congress that Trump agreed with him that the investigation should continue to its full conclusion.
Giuliani indicated this week that the president is just waiting for the investigation to end to fire Sessions in some cathartic release of long simmering anger. Presumably, that would come with a report finding no basis for criminal allegations. Otherwise, Trump would push his administration further toward impeachment if he fired Sessions for not stopping an investigation that ultimately found potential crimes by the president. Thus, at the very moment when the decision of Sessions to recuse himself would pay its full dividend of benefits for Trump, the attorney general could be fired for the favor.
History may show that one of the men who did the most for Trump’s legacy was Sessions. This beleaguered figure has resisted pressure to resign in the best interests of not simply the Justice Department but this administration. His reward may be a pink slip after the release of the Mueller report as the president’s “wishes” come true. Indeed, the Trump sounds like the old Perry Como tune about forlorn desire, “If Wishes Were Kisses.” The song declares, “If dreamers were schemers, I’d make my dream come true.” However, this is one dream that would have been a nightmare if Trump made it come true.
Had Sessions blocked the investigation, there is a real possibility that Congress would have moved toward an impeachment investigation or the enactment of a new Independent Counsel Act. In the latter circumstance, Mueller could have easily led the same investigation and add his own Como twist, “If wishes were kisses, I’d still be investigating you.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.