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Tuesday, January 29, 2019

Must Bill Barr Abide Ethics Advice on Recusal? A Debate

Barbara McQuade and Chuck Rosenberg 
Originally posted January 22, 2019

Here is an excerpt:

But we respectfully disagree on an important point that surfaced during Attorney General-nominee Bill Barr’s confirmation hearing before the Senate Judiciary Committee on January 15 and 16: whether, if confirmed, he should agree to abide ethics advice from Justice Department officials, before he receives that advice, regarding whether to recuse himself from supervision of the Mueller investigation.

Barr previously criticized the Mueller probe, including in an unsolicited legal memo he circulated to the Justice Department and President Trump’s legal team in the spring of 2018, and he commented favorably on the merits of investigating Hillary Clinton for what seems to us to be a bogus accusation. During his hearing, Barr was asked whether he would seek ethics advice regarding recusal. He said he would. When asked whether he would follow that advice, he said that as “head of the agency,” he would make the decision as to his own recusal. He would not follow that ethics advice, he said, if he “disagreed” with it. Is that appropriate? McQuade says no; Rosenberg says yes.

The Justice Department has a strict set of rules and norms that govern recusals. In some cases—for instance, where a prosecutor has a political, financial, or familial interest in a matter—a recusal is mandatory. Other situations can give rise to an appearance of a conflict – a set of conditions that call into question a prosecutor’s impartiality. In those cases, a prosecutor might be advised to recuse, but it is not mandatory. We both believe it is crucial that the work of the Justice Department be impartial and that it appear to be impartial. Thus, we believe that these recusal rules should be scrupulously followed. So far, so good.

The blog post debate is here.