On multiple occasions, President Trump has said that he’s “disappointed” with Attorney General Sessions.
At first glance, this seems like a reasonable position. Sessions has already taken several harmful actions in his new office that merit disappointment and distress.
In May, Sessions decided to roll back one of few useful things that the Obama Administration did on criminal justice reform. Where the Obama Administration called for more lenient sentencing on drug offenses under AG Eric Holder, Sessions explicitly called for US prosecutors to seek the harshest punishments available under the law.
In June of this year, we learned that Sessions was effectively lobbying Congress in order to start enforcing medical marijuana prohibition, even in states that have legalized it. This enforcement has been expressly forbidden since 2014 by legislation, but Sessions wants to start it anew.
And finally, in July, Sessions’s Department of Justice issued new guidance to expand the use of civil asset forfeiture, through what is known as the equitable sharing. While the details here can get complicated, the essence is straightforward. Civil asset forfeiture allows law enforcement to seize individuals property before proving they have committed a crime–thereby making a mockery of due process guarantees in the Constitution. And equitable sharing is a program that helps law enforcement get around prohibitions on the practice that have been implemented at the state level. The bottom line is that under Sessions’s new guidance, more presumptively innocent people will have their property confiscated than before.
If you’re a hardcore Drug Warrior who believes, after some 40 years of steady failure, that the US can finally win the War on Drugs by taking away a few more people’s rights, then these might sound like good ideas. Ditto if you’re stoked to pay millions of dollars to keep (many) nonviolent people locked in a cage.
But for the rest of us, these are plainly awful decisions on many different counts. Any one of them would be sufficient cause for disappointment in the Attorney General’s performance thus far.
Unfortunately, President Trump isn’t criticizing him for any of these things. Instead, Trump has fixated on one of the least objectionable actions that Sessions has taken so far–namely, recusing himself from the Russia investigation.
Whatever one thinks of the Russia investigation, Sessions made the right decision here. It does not matter whether his contacts with the Russian ambassador were nefarious or entirely appropriate. What matters is that he was perceived to have a conflict of interest because it’s entirely possible the investigation could implicate him.
If the outcome is to have any credibility, the Russia investigation needs to be carried out by individuals who are independent in fact and in appearance. It’s not enough to simply be independent; one must also be perceived as such. With Sessions at the helm, the investigation could not hope to check both of those boxes. That’s why he was correct to recuse himself.
This line of reasoning should not be controversial. It’s not a fringe idea to think that investigations need to be independent to have legitimacy.
All of which makes Trump’s outbursts about Sessions even more nonsensical than usual. In his comments, Trump went so far as to explicitly say that he wouldn’t have nominated Sessions to be Attorney General if he knew Sessions would step back from the Russia investigation  recuse himself. But of course, this strongly implies that Trump wanted someone in his camp to be in charge of that investigation–and that Trump would expect a better result or process if one of his people were involved.
Naturally, this fuels the narrative that Trump has something to hide from the investigation. This reaction should have been entirely foreseeable, and clearly, it’s not a desirable result from Trump’s perspective. Every time the Russia story seems to finally be dying down, it miraculously gets another lifeline–and several, like this one, have unwittingly come from Trump himself.
The level of incompetence on display here is something to behold. Trump had several compelling possible reasons that he could use for criticizing Sessions; instead, he chose something benign. And in the process, he turned the focus back onto the Russia investigation–which he had apparently hoped a different AG could minimize.
So the Russia story gets new life, Sessions almost looks like a martyr, and substantive discussion of actual policy gets postponed till another day. Trump comes out on the losing end; unfortunately, the rest of us lose too.