Diagnosis for Democracy
Insights into the State of Our Union
A Blog by Rob Tenery, MD


Jeff Sessions' Recusal is Trump's Biggest Mistake

By Rob Tenery, MD on April 16, 2018

The FBI raid on Donald Trump’s personal lawyer, Michael Cohen’s home, private office and hotel room should be the final blow to Jeff Sessions’ tenure as Attorney General. If left to stand, the President’s attorney/client privilege is dead.

The original charge to Special Counsel Robert S. Mueller by acting Attorney General Rod J. Rosenstein on May 17, 2017 was to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Select Committee on Intelligence on March 20,2017, including:

(i)  any links and/or coordination between the Russian government and individuals associated with the campaign of President Trump; and

(ii)  any matters that arose or may arise directly from the investigation;

(iii)  any other matters within the scope of 28 C.F.R. Section  600.4(a) Original jurisdiction: The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.

After 14 months and millions of taxpayers’ dollars, the Special Counsel’s investigation into Trump’s collusion with the Russians has come up with no evidence to support those claims. So the first of Mueller’s charges to investigate collusion has been fulfilled. What may remain of his original charges that concern any other matters arising from the investigation would be obstruction of justice and payment to a XXX film star by Trump himself in order to influence the outcome of the election.

The Constitution outlines that the President can be impeached for treason, bribery, high crimes or misdemeanors. But because of the ambiguity, except for Bill Clinton who was impeached on the grounds of perjury, but not found guilty, no President has ever been convicted. In an interesting side note, Trump’s lawyer argued that the “president cannot obstruct justice because he is the chief law enforcement officer under (the Constitution’s Article II) and has every right to express his view of any case”.

It must be obvious to all that, at this time, this country is not operating like a Democratic Republic our founders created at its inception. Donald Trump won the Electoral College vote by a decisive 306 to 232. Every presidential election since 1992, with the exception of 2004 between George W. Bush and John Kerry, the popular vote has been won by the Democratic candidate. Although there was some ongoing resistance during Obama’s tenure, his ascendancy to the nation’s highest was accepted. Not so for Trump!

The previous administration, the losing candidate and what has been labeled the ‘deep state’ have not seem to come to that realization. Hillary Clinton and her supporters did everything they could to get her the Democratic nomination and it appears they are now doing everything they can to unseat our sitting President. It's more than just politics!

Some feel what’s been happening to Trump and his administration is criminal. Others feel that the criminality falls on the President himself. But due to a feckless Attorney General and deputy Attorney General, Rod Rosenstein, a long-time ‘pal’ of Special counsel Robert Mueller and fired FBI Director James Comey, this country has been brought to a standstill politically. Only after the report comes out from the Inspector General, can we expect to move forward in addressing the allegations rendered against Clinton and her supporters who have very successfully shifted the attention to Trump. These contrasting allegations must be brought through the courts for final disposition.

In addition or in the interim, Trump should replace AG Sessions with a temporary appointee that can monitor Rosenstein.

Can Trump fire Sessions? According to Devlin Barrett and Matt Zapotosky in The Washington Post, the answer is yes. “Cabinet officials serve at the pleasure of the president and can be fired for any cause or no cause. However, the politics and legality of firing this particular official at this particular time would be fraught, because special counsel Robert S. Mueller III is already investigating Trump’s intentions around his repeated attempts to force or shame Sessions into quitting, to determine whether those efforts are part of a broader pattern of attempted obstruction of justice. Firing Sessions, a former senator from Alabama, could provoke a fierce response in Congress, where many Republicans are still very supportive of their former colleague and where many Democrats fear that the president is willing to tear apart the Justice Department to torpedo the Russia probe.”

Traditionally, the sitting President’s Party looses some of its representation to the opposition in the mid-term elections. Judging by voter turnout and money raised, so far, for the upcoming election, that presumption seems true. With the possibility of the Democrats flipping control of the House of Representatives, Trump has a much better chance of avoiding scathing impeachment proceedings before the upcoming elections than after.

The biggest mistake Trump has made, since taking office, is appointing Jeff Sessions to the position of his Attorney General. In recusing himself from Trump’s involvement in the Russian collusion investigation, AG Jeff Sessions has abandoned his duty as the chief law enforcement officer of the United States to supervise and direct the activities of the US attorneys. Without that leadership, the system flounders, as it is doing now, and justice is goes by the wayside!





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