The Evolving Testimony of a Strangely Incurious Attorney General

 

Parsing the testimony of Attorney General Jeff Sessions regarding a critical conversation that he had with FBI Director James Comey reveals an important evolution in the Attorney General’s account, plus a strange lack of curiosity regarding President Donald Trump’s inappropriate, and possibly illegal, interactions with Comey. The account of the meeting that Sessions finally settled on in his testimony only reinforces the impression of an Attorney General willing to roll over for the President.

The conversation occurred on February 15, 2017, the day after Trump asked Sessions and everyone else to leave him alone in the room with Comey and Comey says the President then asked him to let the Flynn investigation go. According to Comey’s written testimony, the exchange went as follows:

I took the opportunity to implore the Attorney General to prevent any future direct communication between the President and me. I told the AG that what had just happened – him being asked to leave while the FBI Director, who reports to the AG, remained behind – was inappropriate and should never happen. He did not reply.

In his oral testimony to the Senate Intelligence Committee, Comey elaborated how he interpreted Sessions’ reaction:

I — I don’t remember real clearly. I — I have a recollection of him just kind of looking at me — and there’s a danger here I’m projecting onto him, so this may be a faulty memory — but I kind of got — his body language gave me the sense like, what am I going to do?

Notably, the thrust of Comey’s testimony suggests an Attorney General who is aware of Trump’s tendency to flout the rules, but who is also unwilling to do anything about it.

In response to Comey’s testimony, the Justice Department issued a statement providing Sessions’ contrasting account of the conversation:

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.

In advance of Sessions’ testimony, much of the discussion focused on whether Sessions responded to Comey or not, but as Ryan Goodman pointed out, just as important was how each man said Comey framed his concerns to Sessions. Comey says that he told Sessions that the one-on-one encounter was “inappropriate” and should never happen again (and there is no dispute that Sessions knew that it was Trump who had engineered the private meeting the previous day). In contrast, Sessions’ account, through the Department of Justice statement, leaves out any expression of alarm by Comey. Instead, it suggests that to the extent Comey expressed any concern, it was not about the President’s conduct, but about his and his staff’s conduct. Comey, says Sessions, simply said he wanted to ensure that the he and his staff were following the rules, to which Sessions essentially responded, yes, the FBI and DOJ should follow the rules.

What Comey said to Sessions is important for two reasons.

First, an important line of attack against Comey has been to doubt his account of the February 14 meeting with Trump regarding Flynn because of Comey’s failure either to confront the President right then and there or to raise it with a superior at the Department of Justice. Sessions testified yesterday that Comey should have raised the matter with Dana Boente, the acting Deputy Attorney General. Comey insists that although he had reasons for not disclosing the substance of the conversation with Trump to officials outside the FBI leadership, he did in fact tell Sessions that the meeting was “inappropriate.” Second, whether or how Sessions responded to Comey is significant, or not, depending on what exactly Comey told him. If Comey in fact failed to indicate any problem with his meeting the previous day or to register his concerns about the appropriateness of the President’s actions, then Sessions’ failure to respond more vigorously is perhaps more understandable.

But then a curious thing happened during Sessions’ testimony yesterday. Over the course of the questioning, he abandoned his version and accepted Comey’s account of what Comey told Sessions.

Sessions began his testimony by providing an account that matched the DOJ statement:

Following a routine morning threat briefing, Mr. Comey spoke to me and my chief of staff. While he did not provide me with any of the substance of his conversation with the president, apparently the day before, Mr. Comey expressed concern about proper communications protocol with the white house and with the president.

I responded. He didn’t recall this, but I responded to his comment by agreeing that the FBI and the department of justice needed to be careful to follow department policies regarding appropriate contacts with the white house.

But then in a question regarding the meeting, Senator Burr asserted that Comey “did inform you of how uncomfortable that was.” Sessions responded “Correct,” without correcting Burr’s characterization.  Then in questioning by Senator Warner, Sessions simply embraced Comey’s account: “He was concerned about it. His recollection of what he said to me about his concern is consistent with my recollection.” Later, Sessions suggested that in fact he had no independent recollection of the details of what Comey said exactly, but he did not dispute Comey’s account:

SESSIONS: No. He mentioned no facts of any kind. He did not mention to me that he had been asked to do something he thought was improper. He just said he was uncomfortable I believe with it.
BLUNT: After that discussion with Mr. Comey –
SESSIONS: Actually I don’t know that he said he was uncomfortable. I think he said maybe it was what he testified to was perhaps the correct wording. I’m not sure exactly what he said, but I don’t dispute it.

This shift in Sessions’ testimony is significant for two reasons. First, what accounts for Sessions’ initial account that carefully excised any expression of concern from what Comey said to Sessions? Presumably great care was taken in preparing the DOJ statement and Sessions’ initial statement to the Committee. Sessions even indicated that he conferred with his chief of staff, who was present during the meeting with Comey, about their recollection of the conversation. So why wasn’t Sessions’ first account—where he had the opportunity to most carefully select his wording and put it in writing—accurate and complete, particularly since what Comey said to Sessions is so important to the exchange and the overall investigation.

Second, if Sessions now concedes that Comey said that his encounter with the President was “inappropriate” and should never happen again, why didn’t Sessions ask what happened? This is where Sessions is strangely incurious. Remember that Sessions himself testified that Comey knew the policies about contacts with the White House “a good deal better” than did Sessions, that a one-on-one conversation with the President was not per se problematic, and that as an experienced individual in the Department of Justice, Comey could “handle himself well.” So then if Comey himself says the meeting was “inappropriate,” the very same Comey who knows and understands the rules, then why don’t the alarm bells go off in Sessions’ head? This is also the same Comey who could also handle himself well yet was imploring (in words that Sessions does not dispute) the Attorney General to prevent a recurrence. Why doesn’t Sessions ask, wait a minute, why are you saying it was inappropriate? And wouldn’t anyone in Sessions position be starting to think there is obviously a problem that rises to the level he may need to be seized of the matter? I have never met a prosecutor who wouldn’t immediately perk up upon hearing what Comey said and start to dig away to get to the truth (before becoming a Senator and then Attorney General, Sessions was an Assistant US Attorney for six years and a US Attorney for twelve; he also served on the Senate Judiciary Committee overseeing the department).

The most likely answer for why Sessions didn’t ask any questions is that he didn’t want to know the answers. He must have known it was strange that Trump cleared the room the previous day to speak with Comey alone, and Comey even testified that Sessions tried to linger. When Comey told him the following day that what had happened was inappropriate, Sessions either did not answer (Comey) or he responded by telling Comey to be sure to follow the rules on contacts (Sessions), which of course would badly miss the point of what Comey was telling him. In the end, Sessions disputes Comey’s testimony on whether or not he responded, but he leaves the same ultimate impression of his own conduct: that of an unnervingly passive Attorney General willing to roll over in the face of Trump’s misconduct. Perhaps it was this same instinct that allowed Sessions to permit himself and Rosenstein later to be used as part of Trump’s cover story for the firing of Comey. At best, it indicates a most worrisome instinct in the Attorney General going forward. 

About the Author(s)

Alex Whiting

Former Federal Prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston, Former International Criminal Prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague Follow him on Twitter (@alexgwhiting).