Yeomans Work

Sessions Reminds Us Why He Should Not Be Attorney General

October 20, 2017

Jefferson Beauregard Sessions III spent five hours in the witness chair before the Senate Judiciary Committee on Wednesday reminding America that he is not fit by virtue of intellect, knowledge, character, or temperament to serve as Attorney General of the United States.

He once again changed his story about contacts with Russians, appeared poorly informed about major issues, seemed lost when questions did more than scratch the surface, and refused on the basis of specious grounds to answer questions central to understanding the firing of FBI Director James Comey.

Sessions’s record as a senator made it reasonable to expect that he would – as he has – curtail enforcement of the Voting Rights Act, stop holding police departments accountable for unconstitutional conduct, eliminate protections against discrimination on the basis of sexual orientation and gender identity, reject criminal justice reform, and take harsh stances on immigration. Those were all grounds to oppose his confirmation.

Sessions frequently appears to be out of his depth, a perception that can obscure his disturbing – and, to some, unexpected – lack of candor. That quality should be disqualifying in an Attorney General. Though his willingness to deceive the Senate Judiciary Committee was documented even before his confirmation hearing, senators were appropriately outraged when it emerged after that hearing that he had testified falsely in stating that he had not had any contacts with Russians during the Trump campaign. In fact, he had met at least three times with Russian Ambassador Kislyak. Amid calls for his resignation, he recused himself from the Russia investigation. That recusal subsequently led Trump to launch twitter assaults, calling Sessions “weak,” “beleaguered,” and a “disappointment” in an apparent attempt to force his resignation. Sessions, however, with backing from members of his former Senate club and minimal regard for his own dignity, stayed on.

When he testified before the Senate Intelligence Committee in June, Sessions redefined his statement to mean that he had never met with Russians to discuss the campaign. On Wednesday, under aggressive questioning from Senators Leahy and Franken, he admitted that he may have discussed some of Trump’s positions, but could not recall. So, he has traveled a long way from a flat denial of any communication to admitting to three meetings that did not include discussion of the campaign to an admission that he may have discussed Trump policy stances to an assertion that he does not recall whether he discussed Trump’s views. This is either a very faulty memory at work or a disturbing effort at evasion that only raises more questions.

Sessions also stonewalled in response to questions about his involvement in the firing of Comey. In his June testimony, he had refused to answer questions about his communications with Trump regarding the firing. Sessions and Deputy Attorney General Rosenstein met with Trump to discuss the firing. The next day, Rosenstein produced a memo that was highly – and appropriately – critical of Comey’s handling of the Clinton email investigation. Sessions signed on to it and transmitted it to the White House. Trump fired Comey that day, asserting his reliance on Rosenstein’s memo. Trump subsequently confessed to Russians in the Oval Office and Lester Holt on NBC that he was thinking about the Russia investigation when he made the decision.

Based on these facts, Sessions was a central player in the firing decision. When asked about his communications with Trump in his June testimony, he refused to answer, claiming they were confidential. But he refused to assert they were protected by executive privilege and said he wanted to preserve Trump’s ability to assert the privilege in the future. That response frustrated Democrats on the committee. In preparation for Wednesday’s hearing, Democrats sent Sessions a letter saying Trump had had plenty of time and they expected answers.

Democrats were disappointed. Sessions again refused to answer, explaining that he was not asserting executive privilege, but was preserving Trump’s option to do so. Senator Whitehouse correctly pointed out that Sessions’s stance was inconsistent with executive branch policy dating to the Reagan administration.

Executive privilege does not appear in the Constitution. It developed out of a practical understanding that presidents need confidential communications with their closest advisors. It was first recognized by the Supreme Court in U.S. v. Nixon, which involved Nixon’s refusal to turn over the Watergate tapes to the independent counsel. The Court recognized the existence of the privilege, but held that the grand jury’s need for the tapes in investigating allegations of criminal wrongdoing outweighed the privilege. The Supreme Court has not revisited the doctrine since, though the Russia investigation – either special counsel Mueller’s or Congress’s – may provide the vehicle for its next consideration. In the absence of Supreme Court precedent, the D.C. Circuit has developed the law, recognizing that presidential communications form the core of the privilege and are subject to the balancing test used in Nixon.

Sessions’s reliance on the privilege without asserting it defeats congressional questioning just as an assertion would, but it leaves the quest for information in limbo. In a properly functioning Congress, if Sessions asserted the privilege, the committee could consider the merits and, ideally, begin a process of negotiation that would lead to sufficient disclosure to satisfy the committee. If it did not, the committee could subpoena Sessions, give him an opportunity to answer questions and, if he refused, hold him in contempt. That process would take the matter to court where the legitimacy of reliance on the privilege could be tested. None of that is likely to happen so long as Republicans control the committee.

While Congress should continue to push Sessions to reveal what he knows about Comey’s firing, Mueller’s investigation has the means to force his testimony. As we know from the Nixon Watergate tapes experience, executive privilege can be overcome by the needs of a grand jury investigating possible criminal activity by a president and his associates. At Wednesday’s hearing, Sessions stated that he had not been interviewed by Mueller. We know that Mueller is investigating the allegation that Trump and perhaps others obstructed the Russia investigation. The firing of Comey is central to that inquiry. We do not know for sure, but presumably the Mueller investigation is following usual protocol in large-scale investigations, which is to interview around the fringes and work toward the most important players. More than likely, the investigation is moving toward Sessions and he won’t have executive privilege as a shield to avoid talking.

Meanwhile, Sessions will remain Attorney General and continue his assault on civil rights, drag the country back to the failed criminal justice policies of past decades, and make the country an unwelcoming place for immigrants and refugees. Congress and Mueller must keep pressing.

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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.