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Not putting your recusal in writing? Not illegal, but not smart

Not putting your recusal in writing? Not illegal, but not smart

Attorney General Eric Holder baffled lawmakers on Wednesday when he told the House Judiciary Committee he had no idea when he had recused himself from the Justice Department’s investigation into classified leaks to the Associated Press.

Didn’t he put that decision in writing? Isn’t there a memo somewhere with a date and his signature memorializing the transference of power to the deputy attorney general?

The answer to both questions was "no," a response that sent political observers racing to find out if such an oversight violated the law. Turns out, it doesn’t — but it’s no way to run the Justice Department, according to former DOJ officials speaking with The Cable.

"There does not appear to be any statutory requirement that the recusal be in writing," Andrew McBride, a partner at Wiley Rein who served 10 years at DOJ, including seven as assistant U.S. attorney in the Eastern District of Virginia. "However, it is highly unusual for a recusal not to be in writing, to set out the subject matter of the recusal and therefore the scope of the authority of the DAG to act in the capacity of acting attorney general."

"I worked for two attorneys general, Dick Thornburg and William P. Barr," McBride continued, "and I can attest that this was the standard practice of both those attorneys general."

Dan Metcalfe, the founding director of the DOJ’s Office of Information and Privacy, now a professor at American University, agreed that written recusals are standard operating procedure. "Holder, as a matter of practice, should make a recusal in writing," he said.

The issue of legality was raised by bloggers who pointed to a statute requiring the attorney general to put a recusal in "writing," when appointing an independent counsel.  But both lawyers speaking with The Cable said the AP leak investigation does not qualify as independent counsel and therefore the statute is irrelevant. 

But the practical reasons that attorneys general should put recusals in writing are manifold. For one, as the AP case indicates, when an attorney general recuses him or herself, the deputy attorney general inherits vast powers, such as the authority to approve the secret seizure of numerous phone records from the one of the largest news organizations in the world. That kind of power transfer ought to be documented. For another, the absence of a paper trail could tempt attorneys general to claim prior recusal "whenever a case gets too hot," noted McBride. In that scenario, the attorney general says he recused himself when he never actually did, thus avoiding whatever scandal is headed his way. It’s an unlikely circumstance since it requires a fall guy in the form of the deputy attorney general who would under most circumstances refute the attorney general’s claim — but stranger things have happened in government. 

In any event, although Holder said he had no idea when the recusal happened and had no documentation, Metcalfe said a date is probably available on the deputy attorney general’s document authorizing the subpoena. "If you’re deputy attorney general, and providing the authorization, you’re going to recite the fact that the attorney general has recused himself. The authorization, in effect, becomes a memorialization of the recusal."