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The Only Way that a U.S. Attorney General May Self-Recuse
Andrew Hyman

Often at the Originalism Blog we dwell upon the original meaning of constitutional provisions drafted centuries ago, but of course originalism applies just as much to modern statutes and regulations.  So, I would like to discuss how an originalist and textualist might approach the statutory and regulatory authority of a U.S. attorney general to recuse himself.

This is not entirely hypothetical.  Attorney General Jeff Sessions on March 2, 2017 announced that he “decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

Just as self-pardons are controversial as a constitutional matter, self-recusals ought to be controversial too, but as a statutory and regulatory matter.  After all, 28 C.F.R. 45.2 (upon which Attorney General Sessions has explicitly relied) says that a DOJ employee who thinks recusal might be appropriate must file a report with his supervisor who will then make the recusal decision: “If the supervisor determines that a personal or political relationship exists between the employee and a person or organization described in paragraph (a) of this section, he shall relieve the employee from participation....”  So, a self-recusal is impossible per this regulation.

More likely, the U.S. Attorney General is something more than a mere “employee” of DOJ, and so we would be better off looking at the U.S. Attorneys’ Manual, USAM 3-1.140 which says: “United States Attorneys cannot recuse themselves or their offices from cases or matters.  They must be recused by the designated Associate Deputy Attorney General.”  So, again, a self-recusal is forbidden by this DOJ policy.  

As far as I can tell, there is only one other legal route that could end with recusal of the U.S. Attorney General.  All DOJ attorneys must follow the ethical rules of the bar in which they practice, per 28 U.S.C. 530B.  This rule is also codified at 28 CFR 77.3.  And, the pertinent rule of the District of Columbia Bar's Rules of Professional Conduct is that, without the client’s consent, a lawyer cannot represent that client if “the lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer's responsibilities to or interests in a third party or the lawyer's own financial, business, property, or personal interests.'' See District of Columbia Bar, Rules of Professional Conduct 1.7(b)(4).  This D.C. Bar Rule does not forbid a self-recusal by the U.S. Attorney General, and it seems like the only way the AG could legitimately recuse himself.  

In my view, if Mr. Sessions is not a target or subject of the Mueller investigation, it is difficult to see how his professional supervision of that investigation might reasonably conflict with his personal interests.  Moreover, I do not understand why Sessions relies upon 28 C.F.R. 45.2 (applicable only to DOJ “employees”) rather than USAM 3-1.140 (applicable to DOJ officers at or below the level of U.S. attorney), but in any event his self-recusal decision apparently ought to be based instead upon the standard provided by 28 CFR 77.3 and D.C. Bar Rule of Professional Conduct 1.7(b)(4).  

P.S.  One other relevant statute is 28 U.S.C. 528, which applies to DOJ “employees” as well as to DOJ “officers” at or below the level of U.S. attorney.  This statute does not clearly refer to the Attorney General, but even if it does, it seems to be adequately implemented by 28 CFR 77.3 and D.C. Bar Rule of Professional Conduct 1.7(b)(4).

NOTE (by Andrew Hyman, November 2018): I should also mention 5 CFR 2635, “Standards of Ethical Conduct for Employees of the Executive Branch.”  Those regulations (5 CFR 2635) include self-recusal of department heads throughout the executive branch, not just within DOJ, but the reasons are relatively narrow; for example, 5 CFR 2635 does not apparently cover “political relationships” like 28 CFR 45.2 does.  Only for purposes of these branch-wide regulations, 2635.102(b) says: “where the conduct in issue is that of the agency head...such determination, approval or action [shall] be made or taken by the agency head in consultation with the designated agency ethics official.”