Recusal due to conflict of interest has a long history in the annals of Jewish justice. It is a common argument to disprove or to diminish someone’s point of view. The Hebrew expression to describe this argument is Nogeiya B’davar. Literally translated, it means touched by the item, but it actually means involvement in the issue being considered.
Attorney General Jeff Sessions - now under fire for failing to reveal that he met with Moscow’s ambassador to the U.S. during sworn testimony before Congress - has, by recusing himself from any Justice Department investigation of Russia’s meddling in presidential election, admitted that he is, indeed, Nogeiya B’davar.
The concept of recusal evolves out of the Biblical principle that judges should show independence and no bias either towards the rich or towards the poor or be influenced by power. The command is stated clearly in Deuteronomy 16:18-20: “You shall appoint magistrates and officials for your tribes, in all the settlements that the Lord your God is giving you. And they shall govern the people with due justice. You shall not judge unfairly; you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. Justice thou shalt pursue.”
This section of Deuteronomy has been one of the foundations of Western justice. The concept of justice and liberty and due process for all inspired our founding fathers. United States judicial buildings are adorned with Biblical verses about justice. Even the Liberty Bell boasts a biblical quote with the words: “proclaim liberty throughout the land unto all the inhabitants thereof” (Leviticus 25:10).
The Jewish community seems split over AG Sessions’ stance. They are split down the same lines as they were during and in the immediate aftermath of the election.
Those on the right, often Orthodox Jews like myself, are now defending Jeff Sessions. They are confused as to why former National Security Advisor Michael Flynn was forced to resign. And they are shocked that when the attorney general in the Obama administration, Loretta Lynch, held an impromptu meeting with former president Bill Clinton on a Phoenix airport tarmac while in the thick of investigating his wife, there was little pressure on her to recuse herself.
Is there an inconsistency here? There certainly is. In his position as attorney general, Jeff Sessions did the right thing by recusing himself. Loretta Lynch did not.
Some critics on the left suggest Sessions perjured himself during the nomination process. But Senator Al Franken’s question to Sessions was sufficiently vague in its context that Sessions could answer it as he did without violating the basic rules of perjury. Was the question about Sessions serving as one of Trump’s surrogates or was the question referring to Sessions’ official role as a Senator?
Still, there is clearly the appearance of impropriety. Even if Sessions did not technically perjure himself (rabbinically or in the US), he made the right decision by following Jewish law. After all, those charged with enforcing the law should always recuse themselves when investigating their boss. They are always Nogaya B’davar.
Micah Halpern is the author of “Thugs: How History’s Most Notorious Despots Transformed the World through Terror, Tyranny, and Mass Murder.”