Recusal on my mind

In a classic Doonesbury strip, an ill-informed character – upon learning that a government official had recused himself from involvement in a particular matter – exclaimed, “Oh, gross!” While most readers of this blog will presumably have a more positive view of recusals than is implied by this (fictional) reaction, the decision this past week by Attorney General Jeff Sessions to recuse himself from any investigation relating to the Trump campaign’s connection with the Russian government provides an opportunity to offer some quick thoughts about this somewhat rarely used form of COI mitigation.

To begin, one must be alert to the danger of a phony recusal. Such a ploy is at the center of one of the plot lines in the Showtime series Billions (I’m a big fan), in which a prosecutor purportedly recuses himself regarding an investigation of his wife’s employer but still secretly calls the shots in that matter.  And a real-life example was reported on several years ago in the NYTimes, and summarized in this blog: “a Port Authority matter came before the chair [of that organization] in which a client of [the chair’s law] firm had a clear interest and, while the chair apparently recused himself from voting on the matter, according to sources in the Times story, he evidently still ‘made his support for the plan [at issue] known to his fellow commissioners and was involved in planning’ relating to the matter.” In short, recusal is a promise – not a condition, and attention must be paid to ensure the promise is kept.

A different issue is what the standard for recusal should be. Fairly obvious are situations where the conduct of the individual is within the scope of the investigation or where the interests of a close friend or family member could be impacted by the inquiry. Both of these would present clear-cut conflicts of interest. But a more nuanced view of the impediments to ethical decision-making would also include situations involving the potential for “motivated blindness,” a key behavioral ethics concept which is discussed in this earlier post.

Of course, the ramifications of applying such a standard are potentially broad. But, unlike various other COI mitigation measures, recusals are typically not costly or disruptive. Indeed, the act of recusal should be seen as making a positive general statement  about the ethical standards of the individuals and organization(s) involved – as well as providing a teachable moment regarding motivated blindness,

A final point, which is that behavioral ethics research has also shown – somewhat paradoxically – that an individual’s disclosing a COI can free  her to make a conflict-driven decision that would not be made if the COI hadn’t been disclosed, as discussed here.  While the research didn’t involve the investigative context, it still suggests a possibly underappreciated danger in forgoing recusal once the issue has been raised.

This research also suggests that those presented with a conflict involving a possible decision maker on a matter might need support in persuading such individual to recuse herself. For this reason it may be useful for organizations that have not already done so to draft a written investigations policy that addresses recusals (among other things).  Such a policy (and related training) can help ensure that a recusal request – should the issue ever arise –  isn’t seen as “gross.”

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