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Andrew McBride Comments on Eric Holder’s Self-Recusal from Leak Investigation

Foreign Policy
May 16, 2013

Andrew G. McBride, co-chair of Wiley Rein’s Appellate Practice, was quoted today in a Foreign Policy article about U.S. Attorney General Eric Holder’s self-recusal from the leak investigation in which Justice Department officials obtained journalists’ phone records. Mr. Holder told lawmakers yesterday that he hadn’t put the recusal in writing.

Written recusals—while not required by law—are the norm, said Mr. McBride, a 10-year Justice Department veteran who spent seven of those years as assistant U.S. attorney for the Eastern District of Virginia.

“There does not appear to be any statutory requirement that the recusal be in writing,” Mr. McBride told Foreign Policy. “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 [deputy attorney general] to act in the capacity of acting attorney general.”

“I worked for two attorneys general, Dick Thornburgh and William P. Barr,” Mr. McBride added. “And I can attest that this was the standard practice of both those attorneys general.”

There are also practical reasons to put recusals in writing, Mr. McBride said. For example, the absence of a paper trail could tempt attorneys general to claim prior recusal “whenever a case gets too hot,” even if a recusal never actually happened, he said.