Why Did Sessions Recuse Himself? Did He Obstruct Justice?

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Attorney General Jeff Sessions at the Justice Department May 12, 2017 in Washington, DC. Sessions was presented with an award 'honoring his support of law enforcement' by the Sergeants Benevolent Association of New York City during the event, but did not comment on recent events surrounding the firing of FBI Director James Comey. Win McNamee/Getty

This article first appeared on the Just Security site.

When it comes to the question of obstruction of justice in the Flynn and Russia investigations, many focus on President Donald Trump’s actions, and skeptics then wonder what this will all ever amount to if a sitting president is immune from criminal prosecution.

That line of thinking sells short the impact for the White House and for the nation if an official in a senior position—like the Attorney General—were prosecuted for their involvement in obstruction of justice, and there is now a growing list of critical questions that Jeff Sessions himself needs to answer.

James Comey’s testimony raises some of the more disturbing questions about the role played by Sessions.

Let me make two points at the outset:

First, I want to be very fair to the available evidence, and in doing so I also identify exonerating explanations for Sessions, and I identify a very unusual discrepancy in Comey’s testimony about Sessions.

Second, while the focus is on Sessions’s legal exposure for the offense of obstruction of justice, we should not lose sight of a fundamental question: even if Sessions’s actions do not amount to obstruction of justice, do they undermine his ability to continue serving as Attorney General?

RELATED: What Bargain Was Trump Trying to Strike With Comey?

Also, a public reminder: the impeachment clause is also not only for the commission of crimes and it is not only designed for presidents.

I highlighted the potential legal exposure of senior officials in the first piece I wrote on May 10. That was when initial news reports led me to raise the initial question whether Trump’s actions amounted to obstruction of justice. I noted, “If Attorney General Jeff Sessions and others knowingly participated in such a plan, they too would be in legal and political jeopardy.”

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I delved a bit deeper into this question in a piece I wrote for Politico on May 17, right after news broke that the FBI director recorded a memo that the president tried to get him to shut down the investigation of Michael Flynn. In the final paragraph, I turned to a critical question in my view: did the President act alone?:

There’s one other avenue left to help vindicate the public interest if, indeed, the president engaged in an obstruction of justice—but it turns on a factual question. Did the president act alone?

If the attorney general, deputy attorney general, or political advisers knowingly participated in a plan to subvert the ongoing FBI investigation through pressuring or removing Comey, they themselves may be guilty of the crime.

Prosecutors would be wise to start low and work up the chain of officials in building a case and turning suspects as they wend their way to the top. If any of Trump’s associates are convicted for obstruction of justice, history will understand who was chiefly to blame. Immunity cannot save a president from such a fate—to be sure a political one, but soaked in the disgrace of criminal law.

Now, with the addition of Comey’s testimony, here are some of the key data points, in chronological order, that paint a worrisome picture about the role of the Attorney General.

January 10: Sessions falsely states in his confirmation hearing, “I did not have communications with the Russians” (Sessions also failed to disclose meetings with the Russians in his security clearance forms).

February 9: Sessions is sworn in as Attorney General.

February 14: Sessions left Comey in the room alone with the President in what seemed highly preplanned by Trump, and despite rules against such direct communications with the FBI Director.

As an example of these rules, a Memorandum issued by the White House Counsel on January 27, 2017 states:

“Communications with DOJ about individual cases or investigations should be routed through the Attorney General, Deputy Attorney General, Associate Attorney General, or Solicitor General, unless the Counsel’s Office approves different procedures for the specific case at issue.”

A well-regarded Memorandum by the Attorney General in 2007 states:

“With the exception of national security related matters, which are discussed below. All initial communications between the White House staff and the Justice Department regarding any specific pending Department investigation or criminal or civil-enforcement matter should involve only the Counsel to the President or Deputy Counsel to the President and the Attorney General or Deputy Attorney General.”

That said, there is currently no evidence that Sessions knew ahead of time what the President wanted to discuss with Comey. And Comey’s own testimony suggests the Attorney General was unaware. Comey states in his testimony: “the Attorney General lingered by my chair, but the President thanked him and said he wanted to speak only with me.”

February 15:  Sessions did not reply to Comey’s “imploring” him as Attorney General to help prevent the President ever again communicating directly with Comey.

Comey states in his prepared testimony:

“Shortly afterwards, I spoke with Attorney General Sessions in person to pass along the President’s concerns about leaks. 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 – as inappropriate and should never happen. He did not reply.”

February 15-March 2: Comey apparently deeply distrusted Sessions to the point of not reporting to the Attorney General about Trump’s inappropriate actions, even before Sessions’ decision to recuse himself from the Russia investigation.

Comey states in his prepared testimony:

“We [Comey and the FBI leadership] concluded it made little sense to report it to Attorney General Sessions, who we expected would likely recuse himself from involvement in Russia-related investigations. (He did so two weeks later.)”

March 1: The Washington Post breaks a story that Sessions met with the Russian ambassador twice during the campaign.

March 2: Sessions recuses himself from the Russia investigation after enormous public pressure, including from Republican members of Congress.

Early May: Sessions is reportedly involved in the plan to fire Comey and come up with a reason for doing so.

The New York Times’s Michael S. Schmitt reported:

“Senior White House and Justice Department officials had been working on building a case against Mr. Comey since at least last week, according to administration officials. Mr. Sessions had been charged with coming up with reasons to fire him, the officials said.” It is not evident, however, what Sessions exactly knew about the plan and the President’s real reasons for firing Comey.

May 9: Sessions signs a letter to the President recommending the removal of the FBI Director citing the reasons provided by Deputy Attorney General Rod J. Rosenstein. However, Rosenstein did not actually make a recommendation in his memorandum, Sessions had months earlier celebrated Comey for actions Rosenstein criticized; and everything we have learned since May 9 seems to put the lie to the idea that these were the real reasons for firing Comey.

At bottom, if pressuring and firing the FBI Director constituted obstruction of justice, what was Sessions involvement in those actions?

The question is especially pertinent if one focuses on the decision to fire Comey and to come up with a cover story for doing so. That said, perhaps Sessions aided and assisted in the plan to fire Comey without knowing Trump’s intent to stop the Russia or Flynn investigations.

The lack of knowledge could absolve the Attorney General of criminal wrongdoing. These are reasons why I have to conclude essentially with questions, not assertions. Knowing more about Comey’s interactions with Sessions can help answer some of them.

Finally, there is a potential discrepancy in Comey’s testimony: As an explanation for why he did not report the nature of the Oval Office conversation to Sessions, Comey suggests that, on or around February 14, he and “the FBI leadership” expected Sessions would likely have to recuse himself in the Russia investigations.

But it was not until March 1 that the Washington Post broke the story that forced Sessions to recuse himself. Admittedly, Democrats had been calling for weeks for Sessions to resign, but that seemed improbable until the WaPo story’s revelations.

I can think of two plausible explanations for the discrepancy:

(1) Comey has a mistake in his testimony due to an honest mis-recollection of events or perhaps a more nefarious reason such as stretching for an explanation why he did not report to the Attorney General in mid-February;

or (2) Comey and “the FBI Leadership” had knowledge about Sessions at the time that gave them reason to think he would likely need to recuse himself prior to the Washington Post’s story breaking.

Ryan Goodman is co-editor-in-chief of Just Security. He is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16).