Five (Not-So-Obvious) Questions that Att’y Gen. Jeff Sessions Should be Asked

 

There are many obvious questions that Senators and reporters should pose to Attorney General Jeff Sessions—such as asking him about his knowledge of the reasons the President wanted to fire Jim Comey and a New York Times report that “Mr. Sessions had been charged with coming up with reasons to fire him.”

I want to focus here, however, on some less obvious but no less important questions that should be raised. What follows are five sets of questions.

1. February 15 interaction with then-FBI director James Comey

A. Questions:

Do you stand by the Statement of the Justice Department describing your interactions with then FBI Director James Comey on February 15? In particular is it your testimony that the following it true, which is verbatim from the Department’s Statement?:

“Mr. Comey said, following a morning threat briefing, that he wanted to ensure he and his FBI staff were following proper communications protocol with the White House. The Attorney General was not silent; he responded to this comment by saying that the FBI and Department of Justice needed to be careful about following appropriate policies regarding contacts with the White House.”

How certain are you of your recollection of these events? What was your involvement in preparing and reviewing the Justice Department’s Statement? Was anyone present when you held your conversation with Mr. Comey on February 15 about communication protocols between FBI and the White House?

B. Background for these questions: For more on this particular question and its import, read “Is Att’y Gen. Jeff Sessions About to Commit Perjury?”

2. Scope of recusal – Part 1

A. Questions:

Do you agree that you are recused from any and all matters that arise out of the special counsel’s investigation—including if the special counsel investigates obstruction of justice in the Michael Flynn case, obstruction of justice in the Russia investigation, or any matter in which you may be a witness?

It may also be worth asking whether the Attorney General’s recusal applies to any investigation of Michael Flynn for possibly making false statements to the FBI.

B. Background to these questions: On March 2, the Attorney General made a Statement announcing his recusal for “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” On June 8, the Justice Department issued a Statement that it was due to “Attorney General Sessions’ participation in President Trump’s campaign, it was for that reason, and that reason alone, the Attorney General made the decision on March 2, 2017 to recuse himself.”

In theory, those statements may be interpreted by the Attorney General to relate only to events preceding November 8. It is important for the Attorney General to be on the record about the scope of his recusal, and to have a public discussion depending on his answers to these questions.

3. Scope of recusal – Part 2

Your Statement announcing your recusal said you will be recused from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” The Statement refers to matters involving both campaigns—Hillary Clinton’s and Donald Trump’s. According to your letter to the President, you recommended firing Mr. Comey due to his handling of the Clinton emails a matter which involved her campaign at the time. Is it your position that this basis for firing Mr. Comey did not fit within the scope of your recusal because it was not an “existing” investigation at the time? On that logic, is it your position that you could have recommended firing Mr. Comey for having prematurely closed that or any other investigation? Does this not demonstrate that your recusal does not fully cover your conflicts of interest?

4. Reason for recusal

The Justice Department’s Statement in response to Mr. Comey’s testimony says the one and only reason that you recused yourself was not due to contacts with Russian officials or the like. Instead, it states that “Attorney General Sessions’ participation in President Trump’s campaign, it was for that reason, and that reason alone” that you recused yourself consistent with 28 CFR 45.2. That is a fairly generic reason for which there is no cause for it to be classified or discussed only in closed session.

However, in his testimony, Mr. Comey suggested that by February 14 “career people were recommending that he [the Attorney General] recuse himself,” and Mr. Comey added that the FBI was “aware of facts that I can’t discuss in an open setting that would make his continued engagement in a Russia-related investigation problematic.”

By February 14, what were the reasons that career people were recommending you recuse yourself?  Do you have knowledge of the facts of which the FBI was aware that would make your continued engagement in a Russia-related investigation problematic? Why did you continue to remain involved in any Russia-related investigation up until the day after the Washington Post broke the story that you had two undisclosed meetings with the Russian ambassador?

[Editor’s note: see Jeff Sessions Timeline]

5. Any additional meeting with Russian official(s)

With regard to whether you had a third meeting with a Russian official during the presidential campaign, the Department of Justice spokeswoman Sarah Isgur Flores recently stated:

“The facts haven’t changed; the then-Senator did not have any private or side conversations with any Russian officials at the Mayflower Hotel.”

One might interpret the words “private or side conversations” quite narrowly. Those terms do not necessarily exclude other options such as being a member of a group, reception, gathering, or meeting with a Russian official in which you might not have personally and directly conversed with the official. But that’s what members of the public want to know. So, here’s the question: is it your testimony that there was never any third occasion in which you were present in the same room with other people associated with the Trump campaign in which a conversation with a Russian official took place?

Image: Then-Senator Jeff Sessions testifies before the Senate Judiciary Committee during his confirmation hearing to be the U.S. Attorney General January 10, 2017 – Chip Somodevilla/Getty 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.