Yeomans Work

Attorney General Wilbur Ross, Betsy DeVos, or Ben Carson?

November 13, 2017

Attorney General Jeff Sessions has been walking a high-wire of his own creation since his confirmation.

He misled the Senate Judiciary Committee about his dealings with Russians and his knowledge of the dealings of others during the Trump campaign. After being caught, he recused himself from the Russia investigation, which allowed his Deputy Attorney General to appoint Robert Mueller. His recusal and the Mueller appointment provoked Trump to denounce Sessions – his own Attorney General – as “beleaguered,” “weak,” and a “disappointment,” and to declare his appointment a mistake. Sessions’ Republican former senate colleagues let Trump know they would protect one of their own and the bully-in-chief, predictably, backed down. Meanwhile, Sessions forged ahead with his agenda to gut voting and other civil rights protections, empower police and undermine accountability, demand that prosecutors seek the most draconian sentences, and provide the legal tools for eviscerating environmental protections and implementing harsh executive actions against immigrants and refugees.

Sessions, therefore, has alienated Trump, his most important constituent, as well as everyone who does not want to turn the clock back to wipe out decades of progress on civil rights, criminal justice, the environment, diversity, and tolerance. That leaves House and Senate Republicans in his corner. Sessions’s upcoming congressional testimony, therefore, will be crucial. He is scheduled to appear before the House Judiciary Committee on Tuesday and Democrats on the Senate Judiciary Committee are clamoring for his return after it became clear he misled them again in his most recent testimony. Sessions is in a bind. Lie to them again and he risks finally alienating his congressional protectors. But, to answer fully, he will have to reveal communications with Trump and details of the inner workings of the Trump campaign, which, doubtless, would damage Trump and, possibly, Sessions, himself.

As a result, Sessions likely will evade accountability for the period after Trump’s inauguration by relying on the principle of executive privilege without properly invoking the privilege itself. Executive privilege generally protects communications between the president, his close advisors, and those from whom his advisors may seek advice to inform the president regarding matters that fall within the exclusive authority of the president. It is a powerful privilege, but it may be overcome by a showing of a compelling need for the information. Richard Nixon tried to block access to the Watergate tapes by invoking the privilege, but the Supreme Court, while recognizing existence of the privilege, held that the needs of the grand jury investigating Watergate crimes overcame the privilege. Special Counsel Mueller, therefore, has a strong argument for overcoming the privilege in his criminal investigation. It is less certain, but surely possible, that the Senate and House committees have sufficiently strong interests, as well.

The strength of those interests, however, can only be tested ultimately in court. The process of taking the issue to court would have to begin with the issuance of a committee subpoena for the testimony or information, followed by a citation for contempt of Congress for failing to produce it, followed by a civil enforcement action in federal district court. At present, Sessions can count on none of that happening because Republicans control the committees and will not start the process. That allows Sessions to refuse to answer questions on the basis that he is preserving the president’s option to invoke executive privilege (which he surely will do regarding questions surrounding the firing of FBI Director Comey). Without a majority – and so long as Republicans remain in lock-step support of Sessions – Democrats cannot force him to assert the privilege and cannot start the process toward legal resolution of the validity of the privilege. The only thing that can break this inertia and force Sessions to testify is loss of support from enough Republicans to force committee action.

Hope survives, if only barely, that a sufficient pattern of untruths and evasion will rouse a few Republicans to put the institution of the Senate or House ahead of partisanship and demand complete candor from Sessions. Sessions cannot hide behind executive privilege for activities that occurred before Trump took office and entered the executive privilege bubble. With a modicum of spine and regard for the constitutional role of Congress, members can force Sessions to answer questions about these events or invoke another privilege – his Fifth Amendment right to remain silent.

Sessions will be tested by Democratic questioners. Since his denial that he had no contacts with Russians during the campaign and was unaware of any others who had, we first learned that he had contacts with the Russian ambassador and we now know of a much broader pattern of contacts of which he almost certainly was aware. Most recently, we learned that Sessions attended a meeting with Trump at which foreign policy advisor George Papadopolous described his Russian contacts and ability to broker a meeting for candidate Trump with Vladimir Putin. According to another participant at the meeting, Sessions personally shot down the idea. Carter Page, another foreign policy advisor, is alleged to have informed Sessions of his trip to Russia and he reported to high-level campaign officials extensively after his return in July 2016.

In the end, Sessions’s strongest job protection stems from the uncertainty over Trump’s response to an Attorney General vacancy. He surely would see the vacancy as an opportunity to appoint a loyalist who would take back control of the Russia investigation from Deputy Attorney General Rod Rosenstein. The Senate will block him from making a recess appointment by staying in session. While according to a Justice Department succession statute and executive order, the acting Attorney General job would fall first to Rosenstein and then to Associate Attorney General Rachel Brand, there is a strong argument that the subsequently enacted Vacancies Reform Act would allow Trump to appoint as acting Attorney General for a minimum of 210 days any currently serving official who was appointed by the president and confirmed by the Senate. That means any such official serving anywhere in government. It is unlikely at this stage that Trump can stop the investigation or prevent the transmission of its findings to Congress, but surely Attorney General Wilbur Ross, Betsy DeVos, or Ben Carson would be willing to give it a shot. That frightening prospect may keep Jeff Sessions balanced on his high-wire for the foreseeable future.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.