Trump’s definition of loyalty explains Jeff Sessions dust-up

No one but the president may perform his functions when he is alive and not suffering a “disability,” according to the 25th Amendment to the Constitution.

The president can’t simply recuse himself. And the president alone can (must) perform those duties imposed upon him by the Constitution. They are simply not delegable.

There’s no such functionary as “deputy president.” Indeed, even the vice president lacks any authority to carry out the president’s functions if the president somehow would propose to recuse himself. The vice president can surely advise — but he can’t sign a bill into law; he can’t nominate someone to the Cabinet or to a judgeship; he can’t call up the national guard.

{mosads}Put aside that there are those who say Steve Bannon is the president’s puppeteer, or that Edith Wilson secretly ran the show while President Woodrow Wilson was incapacitated; the president alone is authorized to carry out these (and other) constitutional functions. And this president, hardly a legal scholar, knows that all too well.

So, suppose the president, hypothetically, had made a campaign promise to ask Congress to declare war against North Korea. When he mulls over (or even reconsiders) the possibility of carrying out that promise once he is president, he can’t recuse himself on the ground that he prejudged the issue as a candidate.

And while executing a pardon for a relative would carry severe “political” repercussions for a president, the mere idea of him recusing himself in order to allow a non-conflicted (substitute) official to execute the pardon would be nonsensical. Only the president has the power to pardon, and the concept of recusal wouldn’t and shouldn’t even come into play.

So while the president understands the limits on his own ability to recuse, maybe he believes that they apply elsewhere in government positions too.

Or does he?

So, a bit of a primer: Similar to the president, if a Supreme Court justice finds it necessary to recuse herself, or a senator or congressman recuses himself, no one else can stand in his shoes to vote.

Not so, though, for executive branch officials other than the president. For example, if a Cabinet member needs to recuse himself, there is always someone else in the chain who can take action. And that, it appears, is the president’s problem.

Yes, the president may have more confidence in his appointed, and “loyal,” Cabinet member than in that Cabinet official’s first assistant. But there are often valid reasons for recusals. Perhaps the Defense secretary needs to award a large military contract to a company at which he was previously the CEO.

Maybe the secretary of State must investigate a U.S. embassy for alleged misconduct during a time he himself was the ambassador. Or possibly the Education Department is considering a program that will increase benefits to a pension system in which the Education secretary herself is a pensioner.

Rules and regulations, as well as common sense, guide an executive branch official to ensure that government decisions are effectuated with integrity and without “appearance of impropriety” problems.

This president, though, seems not to accept this — particularly so, it seems, in the instance of an attorney general who must not only conform to traditional “ethics” rules and regulations applicable to all Cabinet officials but also to legal ethics rules. He is, after all, the nation’s top lawyer.

Put aside that then-Sen. Jeff Sessions stated, at his confirmation hearing, that he would seek advice to avoid a conflict of interest. The basis for his recusal had nothing to do with that statement. As Sessions himself noted, Justice Department regulations alone require recusal when a matter implicates a personal or political relationship with something that must be investigated.

And because Sessions met with Russian diplomats during the campaign (and then, for one reason or another, left some of those meetings off his disclosure forms) — an issue that would invariably be part of the “Russian election influence” investigation — Sessions couldn’t be part of an investigation that would basically require him to investigate himself, his actions and his motivations.

So, notwithstanding the obvious, here’s the president’s gripe: “If he, Senator Sessions, had told me that he would recuse himself over this business, I would have appointed someone else.”

Fair enough. I suppose the suggestion is that Sessions — yet not the president — should have/could have known when he accepted President Donald Trump’s nomination that a Russia investigation would be necessary, and that Sessions would have to recuse himself: “Mr. President, I will accept your nomination but note that if there is an investigation into Russia tampering with the campaign, I will recuse myself.”

No question, the president has made it excruciatingly well known that he is annoyed at Sessions. He’s annoyed because he can’t exercise the same control — he calls it “loyalty” — over the deputy attorney general (by the way, also the president’s nominee) who, unconstrained by any personal loyalty “pledge,” as it were, appointed special counsel Robert Mueller.

Let’s put it another way. The president basically told the American people during his campaign that he had the people’s back. He actually used the phrase “I alone” — “I alone can fix it. I will restore law and order.”

He didn’t suggest that surrogates he would choose would act for the electorate. He alone would do the job.

So, it seems, he expected the same from the attorney general. He expected, in no uncertain terms, that the attorney general he chose would have his back. The attorney general would take the necessary actions. And the president seems to believe he exacted that precise pledge from then-Sen. Sessions.

So this is where we are left — what Trump apparently wanted was an attorney general who wouldn’t see the need to ever recuse himself (or at least, not in these circumstances) — who would willingly advance the president’s personal agenda.

Perhaps Trump should have wanted a prominent lawyer, judge or public official who had no relationship to Trump or his campaign but whom Trump could rely on as if he had made a loyalty pledge. Such an attorney general wouldn’t have had a tangible conflict, and so he wouldn’t have to recuse himself.

That nominee could just have been an individual who “believed in” Trump and his views of America. Maybe that’s the individual Trump should have chosen: a figure who could be counted on to make that “right” decision, i.e., the one that would please the president.

Put another way, perhaps, an attorney general who wouldn’t see the need to look under every stone. That is, an individual from whom the president could expect loyalty, but who wouldn’t be subject to disqualification because of that loyalty.

So, the president would have wanted a confirmable attorney general whose back pocket decision to rapidly decline any kind of investigation other than a cursory “look see” couldn’t — and therefore wouldn’t — be the subject of a valid legal action brought by the president’s enemies seeking to place roadblocks to, or even reverse, that decision.

Basically, the president wanted his attorney general nominee to be what a real estate person would typically call a “nominee” — an agent who will do the bidding of the one who named him. Say what you will about Sessions — and there is much one can say — whatever his loyalty to the president and his agenda entails, it does not, it seems, include his accepting the mantle of nominee.

And, thus, the president’s dilemma.

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. An adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications and is the author of “Broken Scales: Reflections on Injustice.” Dale J. Degenshein of Stroock assisted in preparing this article and Broken Scales.

The views expressed by contributors are their own and are not the views of The Hill.