In his January confirmation hearings, Sessions told the Senate Judiciary Committee that he would recuse himself from investigations that involve Hillary Clinton, admitting that “with regard to Secretary Clinton and some of the comments I made, I do believe that that could place my objectivity in question.”
Some legal experts told ABC News that this letter raises ethical concerns.
“The whole situation is unusual,” said a former Department of Justice official, who explained that “historically, DOJ has had a strong record of independence,” which could erode if there is an “appearance that DOJ is acting based on political pressure rather than on an independent assessment of the facts and the law.”
“You have to go back to Nixon to find a similar situation of a president involving himself in prosecutions of political enemies,” concluded another former government official.
But other legal experts told ABC News that Sessions does not appear to have crossed any legal or ethical lines at this point.
Kathleen Clark, a legal ethics professor at Washington University School of Law, said that in Monday’s letter, Sessions “may be attempting to thread a difficult needle” by “mollifying certain House Republicans who want the resources of the Department of Justice trained on Clinton Inc.” while at the same time remaining vague about which Clinton issues might be examined and what Sessions’ role would be. Sessions was “quite artful in addressing what is a politically fraught situation,” Clark added.
“The investigation into contributions to the Clinton Foundation is not campaign-related,” according to Harold Krent, dean of the Chicago-Kent College of Law, Illinois Institute of Technology. “Thus, Sessions' possible appointment of a special counsel would not run afoul of his prior recusal declaration,” Krent told ABC News.
“I do not think it will be a big deal if career non-political prosecutors make the recommendation [to appoint a special counsel to investigate Clinton matters] and then Rod Rosenstein makes the final call,” said John Lauro, a former federal prosecutor and attorney with the Lauro Law Firm. Lauro said that he does not see any legal or ethical issues, adding that career prosecutors are presumably unaffected by Trump’s comments.