The Cable

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."


The Cable

Will Benghazi furor keep Susan Rice out of the White House?

Insiders with ties to the Obama administration tell The Cable that U.S. ambassador to the United Nations Susan Rice has become the heir apparent to National Security Advisor Tom Donilon -- a post at the epicenter of foreign-policy decision making and arguably more influential than secretary of state, a job for which she withdrew her candidacy last fall amid severe political pressure.

"It's definitely happening," a source who recently spoke with Rice told The Cable. "She is sure she is coming and so too her husband and closest friends."

"Susan is a very likely candidate to replace him whenever he would choose to leave," agreed Dennis Ross, a former special assistant to President Obama and counselor at the Washington Institute. "She is close to the president, has the credentials, and has a breadth of experience."

Both sources said the timing of succession was uncertain. "I don't believe Tom Donilon is about to leave but would be surprised if he were to remain for the whole second term," Ross said. "But in answer to your question, [Rice's appointment] is very logical."

Rice's candidacy for secretary of state imploded in November after she recited talking points about the Sept. 11 attack in Benghazi on five Sunday talk shows that turned out to be erroneous.

The question now is whether Benghazi's return to the spotlight will affect her potential appointment at a time when the White House is reeling from revelations about the IRS's scrutiny of conservative groups and the Justice Department's subpoena of the calling records of AP journalists.

For now, prominent Republicans don't seem inclined to make a fuss.

In November, Arizona Sen. John McCain pledged to "do everything in my power to block her from becoming secretary of state"; South Carolina Sen. Lindsey Graham said, "I don't think she deserves to be promoted"; and Tennessee Sen. Bob Corker said she'd make a better DNC chair: "I think most of us want someone who is more independent minded."

But now -- even as Benghazi fever reaches a crescendo following last week's dramatic "whistleblower" hearing and Wednesday's release of 100 pages of Benghazi emails -- the GOP's desire to check her rise has seemingly evaporated, and Republicans have few tools to prevent her appointment, which would not require Senate confirmation.

When asked if he was concerned about a future National Security Adviser Susan Rice, Corker, the ranking member of the Senate Foreign Relations Committee, told The Cable he was sitting this one out.

"In the case of national security advisor," he said, "whomever serves in that position serves at the pleasure of the president. So it's totally his prerogative." When The Cable asked Graham and McCain the same question, their spokesmen declined to comment. 

In some ways, the deflated interest in Rice is only natural. Though the testimony of State Department witnesses last week served to highlight the inaccuracy of Rice's talk-show appearances, new details of the editing process of her talking points show her nowhere near the drafting process -- just as the administration has long maintained.

Meanwhile, a more tantalizing GOP target has emerged in the form of Hillary Clinton, the overwhelming favorite to assume the Democratic presidential nomination in 2016. Democrats, Republicans and witnesses fixated on Clinton 32 times during discussions in last week's hearing.

Rice spokeswoman Erin Pelton declined to comment for this article. White House National Security Council Spokeswoman Caitlin Hayden said, "We don't have any personnel announcements to make at this time, and Mr. Donilon has no plans to depart at this point." She added that Donilon is "fully engaged in managing our national security agenda, from his recent trip to Moscow and major address on global energy, to planning for a trip to China in late May and more upcoming speaking events."

The administration hasn't shied away from heaping praise on Rice. Last week, at a gala for the Joint Center for Political and Economic Studies, Vice President Joe Biden told the audience that the U.N. ambassador has "the absolute, total, complete confidence of the president," and that when she speaks on issues of foreign policy, nobody doubts she's speaking for Obama.

Back in March, when colleague Colum Lynch first reported whispers of Rice's comeback, Ben Rhodes, deputy national security adviser for strategic communications, spoke glowingly of Rice's relationship with the president. "Susan always maintains close relations with the president and his national security team, and that continues to be the case," he said. "If anything, the way she handled the Benghazi situation -- and then the withdrawal -- only enhanced her relations here, because she did so with grace and good humor."

The president himself has gone out of his way to wink at an expanded role for Rice within his administration. "I have every confidence that Susan has limitless capability to serve our country now and in the years to come, and know that I will continue to rely on her as an advisor and friend," Obama said in a December statement.