So, Attorney General Jeff Sessions has recused himself. Great! Just one question: From what?Yes, yes, Sessions is a good and decent man. He is a scrupulous lawyer who cares about his reputation. Thus, in stark contrast to Obama administration attorneys general, he strictly applied — I’d say he hyper-applied — the ethical standard that calls on a lawyer to recuse himself from a matter in which his participation as counsel would create the mere appearance of impropriety. The standard is eminently sensible because the legitimacy of our judicial system depends not only on its actually being on the up and up but on its being perceived as such. If it looks like you’re conflicted, you step aside, period. Simple, right? Well . . . Much as I admire our AG’s virtue (and you know I do), let’s pause the preen parade for just a moment. There’s a tiny word in that just-described ethical standard that we need to take note of: matter. A lawyer doesn’t just recuse himself. He recuses himself from a legal matter — from participation in a case. When we are talking about the criminal law, that means recusal from a prospective prosecution. You need a crime for that. Prosecutors do not recuse themselves from fishing expeditions or partisan narratives.
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