Will recusal fix AG Jeff Sessions’ Russian problem?

(c) Brenda Grantland, 2017
republished from brendagrantland.com on 3/6/2017
republishing permitted with attribution

A brouhaha has arisen over brand new Attorney General Jeff Sessions’ testimony under oath during his Senate confirmation hearing.

When Senator Al Franken asked him whether there was

any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign?

Sessions replied:

I’m not aware of any of those activities. I have been called a surrogate a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.

Sessions later admitted that he spoke to the Russian ambassador, Sergey Kislyak, twice during the Trump campaign.

According to Fox News, one of the meetings occurred in Session’s Senate office. The Justice Department — over which Sessions is now boss — said Sessions was conducting that meeting in his capacity as a member of the Senate Armed Services Committee.

His second meeting with Kislyak occurred after a Heritage Foundation speech, when Sessions met with Kislyak and a group of other ambassadors.

Sessions has sort of suggested he may recuse himself from any investigation of the connection between the Trump campaign and the Russians. Many think that is not enough. Some are calling for Sessions to resign as Attorney General. Others call for appointment of a special prosecutor to investigate the matter.

Is recusal enough to cure Sessions’ problem?

Recusal from any investigation of alleged contacts between the Trump campaign and Russian officals during the campaign might help address Sessions’ conflict of interest in investigating Russian influence on the Trump election — a serious conflict if Sessions was involved in the dialog between Russia and the Trump campaign.

Clearly letting Sessions be the big boss overseeing that investigation would be akin to letting Attorney General Loretta Lynch investigate the alleged interference of the Hillary Clinton campaign (for which Bill was a surrogate) with the FBI investigation of Hillary. During the FBI investigation of Hillary Clinton, when Bill sprinted to Lynch’s airplane on the tarmack and had a private conversation with her and was caught by the press, Loretta Lynch recused herself from Hillary’s FBI investigation, delegating her authority as Attorney General to the FBI chief, a delegation some said was not enough to cure the problem.

Taking his cue from Lynch’s reaction, this week Sessions offered to recuse himself from that investigation, sort of, saying “I would recuse myself on anything that I think I should recuse myself on. That’s all I can tell you.”

No doubt Sessions may try to follow Loretta Lynch’s lead in delegating his prosecutorial oversight as Attorney General to the FBI chief. To most of us, that didn’t cure the conflict with Lynch and it won’t with Sessions because the FBI chief is an underling of the Attorney General. Having the Attorney General delegate his/her power to a subordinate doesn’t cure anything. Subordinates are subject to the control of their bosses, whether overt or subliminal. Who would dare defy their boss on such a matter, especially a controversy which impugns his boss’s integrity?

Recusal won’t solve Sessions’ problem for another reason as well — it doesn’t address the question of whether he lied under oath, as House Minority Leader Nancy Pelosi charged. Because Sessions made that statement in his sworn testimony to Congress, if he lied under oath, he may have committed perjury, a felony, carrying a sentence of up to 5 years in prison.

Is Sessions’ statement perjury?

Under federal law, perjury occurs when anyone:

“having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true…”

18 U.S. Code § 1621(1). The Ninth Circuit’s jury instruction breaks that criminal offense down into these elements — whether:

  • the person was under oath?
  • the testimony was false?
  • the false testimony was material to the matter under inquiry in the proceeding?
  • the person acted wilfully and with knowledge that the testimony was false?

Clearly the statement was made under oath. It occurred during Sessions’ Senate confirmation hearings for the office of Attorney General.

Was the testimony false?

According to the 1815 Congress of Vienna,

“ambassadors are diplomats of the highest rank, formally representing the head of state, with plenipotentiary powers (i.e. full authority to represent the government).”

Can there even be a shadow of doubt that the Russian ambassador is a Russian official?

Did Sessions know the statement was false?

Having served in the U.S. Senate for 20 years, he had to have known that the man he met with, Sergey Kislyak, was a Russian ambassador and that an ambassador is the highest ranking diplomat in the U.S. representing a foreign government.

The issue boils down to one question:

Was Sessions’ statement material to the matter under inquiry?

So what was the matter under inquiry?

Sessions was applying for a job as Attorney General, the top prosecutor in the country. Senator Franken was asking whether anyone affiliated with the Trump campaign had any contact with Russian officials during the campaign — because there were ongoing allegations from the Hillary Clinton campaign that Russia “hacked the election,” causing the election of Trump instead of her. That accusation is still being hurled by Hillary surrogates as her excuse for losing the election, and the controversy likely won’t die down until there is an official investigation that lays it to rest. And an investigation that the public trusts as being thorough and unbiased.

Senator Franken thought that issue was important enough to ask Sessions the general question, to which Sessions went further and replied that he himself “did not have communications with the Russians.”

Had Sessions not unequivocally denied it, but admitted that he had several meetings with the Russian Ambassador during the Trump campaign, Frankin would no doubt have asked follow-up questions about whether Sessions’ meetings included any mention of the Trump campaign, for which Sessions was currently serving as a surrogate.*

By denying any such communications, Sessions cut off that line of inquiry.

Former White House Ethics Lawyer Richard Painter pointed out that, now that the cat is out of the bag about the meetings, we need to know a lot more — “we don’t know for example what was being discussed with the Russian ambassador.”  According to Fox News,

“Franken said he was troubled that Sessions’ response to his question was ‘at best, misleading.’ He said he planned to press Sessions on his contact with Russia.”

Richard Painter, who served in the George W. Bush White House, also questioned “why a member of the Senate Armed Services Committee was having unilateral discussions with the Russians,” and called for Sessions to resign.

Clearly there is bipartisan concern about this alleged perjury.

Was Sessions’ statement just a white lie, a slip of the tongue, a nothingburger?

Numerous right wing blogs are calling this a “nothingburger.”** Just a few months ago Hillary supporters were calling Hillary’s FBI investigation a nothingburger, perhaps not using the same quaint term.

But is it trivial, much ado about nothing? The DOJ’s explanation that he was acting in his role as a member of the Senate Armed Services Committee doesn’t overlook the fact that his actual words unequivocally stated, all in the same sentence, that he had been called a surrogate of the Trump campaign and that he did not communicate with the Russians in the course of the campaign.

When I hear Sessions’ words in his characteristic Southern drawl — “I did not have communications with the Russians” — I can’t help hearing another Southerner drawl “I did not have sexual relations with that woman.”

There are some important parallels here. Meeting with the Russian ambassador is not a crime. Neither is having sexual relations with a consenting adult, even if you are president and the woman is your intern and you do it in the oval office.

The important question is, did he commit perjury when he lied under oath?

That question cannot be answered without knowing the content of the discussions Sessions had with the Russian Ambassador, because the question still remains whether Sessions’ false statement was material. Further testimony is required.

Recusing himself from heading the investigation into the Trump-Russian connection and his own conduct won’t cut it.

Even a member of his own party, Senator Lindsay Graham (R- S.C.) called for a special prosecutor — sort of — saying:

“If there’s something there that the FBI believes is criminal in nature, then for sure you need a special prosecutor.”

Of course if Sessions’ FBI is charged with deciding whether the Russian-Trump connection or what Sessions did is something “criminal in nature” — that will be the end of the investigation. No FBI chief would dare oppose the Attorney General, as FBI Chief Comey has already shown. At least Comey had the integrity to come forward voluntarily and correct a mistaken statement he had made in his Congressional testimony, an act he caught hell for from Hillary.

This brings us to the bigger questions:

1. Should perjury be a crime?

I think everyone will agree it should be. Otherwise, trials and Senate hearings would have no way of enforcing factual integrity.

2. Should there be two different standards: one for public officials and one for the public?

Let’s face it. Much of the government corruption that the American people are yammering on and on about today is about the double standard. Well connected government officials, powerful political candidates and party officials, and powerful political party donors like the banksters who caused the banking collapse and recession and yet got bailed out with taxpayer money — got different treatment from the rest of us. “Justice for just us” does not sit well with Americans who lost their jobs or life savings due to the banking collapse.

The public outcry about Sessions’ lie to Congress and the conflict of interest that it possibly uncovered should not be squelched, or drowned out by  a new red scare focused on the Russians or claims that the Democrats did the same thing, but should instead be focused on cleaning up the corruption in both parties.

Allegedly lying to Congress right out of the box during his confirmation hearing means Sessions may well lack the legal ethics chops to serve as Attorney General. The Attorney General is the nation’s top prosecutor. This position requires a high degree of legal ethics and ability to apply the law fairly and without bias. Standard 3-2.1 of the ABA Standards for the Prosecution Function say that a public prosecutor “is a lawyer subject to the standards of professional conduct and discipline.” Lying to the court, or Congress impugns ones honesty. It is an act of moral turpitude that can lead to disbarment, even for the country’s top prosecutor.

Incidentally, Bill Clinton’s lie about sex with an intern did not turn out to be a nothingburger. That lie led in 1998 to perjury charges and impeachment by the House of Representatives, ending in Bill Clinton’s acquittal in the Senate after a 21 day trial. Clinton was also held in civil contempt for lying about the Lewinsky affair in testimony in the Paula Jones case and was fined $90,000 by that judge. Clinton’s license to practice law was suspended in Arkansas for five years, and has never been reinstated, and he was also disbarred from appearing in front of the US Supreme Court.

This is not a nothingburger but a really big deal.

One or more independent prosecutors should be appointed to thoroughly investigate and report to the American people on whether there was any illegal meddling or manipulation in the entire 2016 presidential election — primaries and all — by the Russians, the DNC/Hillary campaign, or any other forces.

Making it a bipartisan inquiry could help ensure that the selection of the independent prosecutors is not biased in favor of the political party in control of both houses and the Presidency. It will also put to rest the claim that the Clintons did it first, therefore it is okay.


* Sessions was well connected to the Trump campaign all along. A July 2016 article in the Washington Post said “in the party of Trump, Sessions is at the center of the action. He was an early backer of the real estate mogul’s candidacy, when most Republican officials were denouncing Trump’s comments about Mexicans and his promise to build a wall on the southern border.”

** In case you are curious, the term “nothingburger” was apparently coined in 1984 by Ann Gorsuch, Ronald Reagan’s appointee as EPA Director. She took the position with the avowed purpose of dismantling the EPA, and succeeded in cutting its budget by 22%, relaxing EPA regulations, reducing the prosecutions of polluters, downsizing its employees, and hiring new staff from the industries that the EPA regulated. Eventually, after prolonged public outrage, she resigned her EPA post under pressure of a Congressional investigation of her alleged mishandling of the $1.6 billion toxic waste Superfund. Ronald Reagan promised Gorsuch another job in his administration. When he appointed her to a three year term as chair of an advisory committee on oceans and atmosphere (where she could have learned from experts on the panel about the effects of pollution on global warming and ocean level rise), she called that position a “nothingburger,” prompting both houses of Congress to pass resolutions asking Regan to withdraw her appointment. She then declined the job.

Neil Gorsuch — Ann Gorsuch’s son — is Trump’s nominee to the Supreme Court.