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The Problem with Jeff Sessions: Too Ethical

| 28 Comments
The Wall Street Journal is carrying a story that Attorney General Sessions offered to resign .  It begins:

Attorney General Jeff Sessions offered to resign from his post in recent weeks, amid tension with President Donald Trump over his decision to recuse himself from the investigation into Russian meddling in the 2016 election, according to people familiar with the matter....

Mr. Trump's displeasure with Mr. Sessions appears to trace back to the attorney general's decision in March to remove himself from involvement in any Justice Department investigation related to the 2016 presidential race, following the disclosure that he had conversations with a Russian official while advising the Trump campaign. That contact appeared at odds with testimony he gave during his confirmation hearing.

Three observations.  First, I have no idea whether this story is true.  Second, Sessions' Senate testimony was truthful in every respect, and is sometimes made to appear dishonest only by omitting the the specific questions he was answering (as I explained here).

Third, remember when Sessions' opponents were claiming he could not be sufficiently independent from the President?  That he would be a shill, a puppet?  

Yes, well, someone was playing games with the truth, but it wasn't Jeff Sessions.

28 Comments

Bill, do you think it was ethical for AG Sessions to recommend Comey's firing to Prez Trump after having recused himself from the investigation into Russian meddling in the 2016 election?

I can well understand Trump's irritation. The outgoing Administration (with the help of the press and holdovers) set Trump up. Sessions insisted (rightly) on playing by Marquess of Queensbury rules.

It is unfortunate that Trump cannot heed the idea that "Revenge is a dish best served cold."

How was Trump "set up" here, federalist? I can understand complaints/concerns about Obama folks and the press being "biased" against Trump, but what do you mean about Trump being set up in this context?

Bill, read the just released Comey memos. "Too ethical"? Come on! If he had the high ethical standards you attribute to him, he would do what has been reported he suggested to Trump: Resign and try and begin to wipe the stench off Trump off his body.

paul, my too quick read of the Comey testimony indirectly makes AG Sessions look worse than Prez Trump. Prez Trump, who is not a lawyer and seems not to understand the need for divisions between the WH and DOJ, probably never realized he was doing anything improper. But AG Sessions, after the Feb 14 encounter as described by Comey, had to know Prez Trump was eager to scuttle an FBI investigation and in turn had to know later that Prez Trump wanted to fire Comey for this reason.

That AG Sessions not only allowed Prez Trump to fire Comey for this reason but in fact supported this decision with his "clear recommendation," strikes me as not the work of an independent ethical AG. (And that this happened after AG Sessions pledged to be recused from all this only adds to the ugliness, it seems.)

That all said, I remain eager to hear from Bill (and perhaps federalist) concerning their take on the behavior of AG Sessions.

For the head of the Justice Department NOT to make an assessment of the continued suitability for service of the FBI Director, when that suitability had been widely questioned for months by both sides of the aisle, would have been the height of irresponsibility.

Sessions on his own initiative recused himself from the Russia investigation, not from essential oversight of an enormous component of DOJ with hundreds of other duties for which the Attorney General is ultimately responsible.

"Resign and try and begin to wipe the stench off Trump off his body."

I have asked you repeatedly to take your Trump-is-Hitler campaign to a site better suited to it or to start your own site, and to lay off the use of language like that.

Having ignored my request, from now on, if you do it in a comment to an entry I wrote, I'll simply erase it.

"That AG Sessions not only allowed Prez Trump to fire Comey for this reason but in fact supported this decision with his "clear recommendation," strikes me as not the work of an independent ethical AG."

1. I had not previously been aware that the Attorney General can allow or not allow the President to fire a Presidentally-appointed officer.

2. Sessions approved but did not write Rosenstein's memo outlining the reasons Comey should be let go, and the President later said the memo did not affect his decision, which had he had already made.

3. Whether Comey should or should not have been fired depends on -- ready now? -- an evaluation of THE MERITS of the many questions that had arisen about his performance. As I have noted on C&C, and again in my US News and World Report op-ed, the decision to fire him was warranted on the merits.

https://www.usnews.com/opinion/op-ed/articles/2017-05-12/donald-trumps-firing-of-fbi-director-james-comey-was-right-but-regrettable

4. I repeat: Jim Comey was and is a man of integrity. Like every other human being, he is capable of error, and he can be the right man in the wrong job.

Decencyevolves: While Comey served at the pleasure of the President, his firing was nonetheless illegal if Trump did it for the corrupt reason of obstructing justice by impeding the investigation of ties between Russia and Trump's associates. It appears increasingly likely that this was Trump's illegal purpose and that Sessions knew this was his illegal purpose. The existence of other post hoc rationalizations, which Trump himself disclaimed in his interview with Lester Holt, is irrelevant to whether or not the President obstructed justice with the knowledge and participation of the Attorney General.

Decencyevoles: Actually--that's incorrect and unfair. While Comey expressed his discomfort to Sessions about the President meeting with him privately, his written statement doesn't reflect that he told Sessions about Trump's repeated demand for loyalty in connection with whether Comey wanted to keep his job and Trump's pressure to not investigate Flynn. That said, how anyone would want to continue working for a President who would do that, and then use them to validate obstruction of justice, is beyond me.

Wow. In light of today's testimony and the information that Comey has no plans on testifying that Trump tried to obstruct justice, there should be a lot of crow on the menu tonight.

Liberalism means never having to say you're sorry.

I was very impressed, however, with Decencyevolves' self-correction on this thread. You almost never see something like that on the Internet.

I wish the prosecutor, judge and defense lawyer involved in the Wendell Callahan triple murder scandal had one-tenth the conscience.

Bill, though I know you would always rather talk about Wendell Callahan, your post title here is about Jeff Sessions being "Too Ethical." In light of that topic, I am eager for a clear "yes, ethical" or "no, not ethical" answer to this question:

Was ethical for AG Sessions to recommend Comey's firing to Prez Trump after having recused himself from the investigation into Russian meddling in the 2016 election when he was surely aware that this investigation was the reason Trump wanted Comey fired?

You often ask me to answer a question yes or no, and I am returning the favor.

Yes it was ethical.

This is the same "does motive matter" debate that's going on with the "Travel Ban."

If one believes, as I and many Democrats do, that Comey's discharge was correct on the merits because of his misjudgments related to prior Congressional testimony, then the Attorney General's saying so is ethically unassailable. It cannot be wrong, much less unethical, to follow the facts where they lead. Here, they led to the (unfortunate, in my personal opinion) conclusion that new leadership was indicated for the FBI.

Bill,

I have never compared T to H or even suggested such an inane comparison. [The remainder of this comment has been deleted -- WGO].

Bill, thanks for the direct answer, though I find curious in this setting uncertainty about whether motive matters here. As I understand it, the motive/intent of Trump in firing Comey is central to any assessment of whether Trump is guilty of obstruction of justice. In turn, if Sessions has reason to believe Trump wants to fire Comey only for an improper motive, it would seem unethical to offer up to Trump a facially proper motive to do what would still be done for truly improper reasons, no?

To imagine a parallel, if a client said he was eager to delete a bunch of old files from his computer after getting a subpoena seeking business records, I do not think it would be ethical for me to say "well, you could have and should have deleted them a long time ago as part of regular record-keeping, so it is now okay to delete them." Isn't that essentially what you are saying it was ethical for Sessions to say/do?

Please understand that I am not trying to unfairly besmirtch AG Sessions here, but I am trying to fairly assess whether he should be praised or criticized for his actions in the Comey affair.

"Isn't that essentially what you are saying it was ethical for Sessions to say/do?"

It's seldom necessary, and certainly not necessary here, to ask what it is "essentially" that I'm "saying." I use words with care, and I say what I mean. I'll say it again:

"It cannot be wrong, much less unethical, to follow the facts where they lead. Here, they led to the (unfortunate, in my personal opinion) conclusion that new leadership was indicated for the FBI."

Not being a newcomer to what goes on inside the Beltway, I'll make one more observation: The attacks on Sessions as supposedly unethical have not been validated by a single NEUTRAL and authoritative source. This is a political campaign to hamstring the new sheriff in town. It's being orchestrated by those who oppose his substantive policies in order to weaken them and him. Unfortunately, this is how things now work in DC.

It's a first cousin to the accusations, during his confirmation, that he's a racist. That complaint had the same motive and the same amount of truth, that being none.

If you actually think the Attorney General has committed an ethical violation, however, you are not without remedy. File a bar complaint and win it. Opinions of the chattering class (that would include both of us) are all well and good, but have no particular authority.

Sessions told (or more correctly endorsed) the truth about Comey. It's a truth I don't like, but it's still the truth: Comey made significant misjudgments in handling the email investigation that warranted his removal and a fresh start at the FBI. It would have been, if not unethical, at least unwise, for the head of the Justice Department to say anything ELSE.

Decencyevolves: If Comey had told Sessions about Trump's efforts to influence the Russia probe, or if evidence shows that Sessions was aware of Trump's improper purpose for firing Comey before writing a letter justifying Trump's foreordained decision, I think Sessions could be implicated. Mueller's probe is likely to take in these issues, so no one is out of the woods yet. Trump makes Nixon look like a saint. Josh Marshall, from Talkingpointsmemo, summarized it better than I can:

"After yesterday’s news breaks, it seems clear that President Trump spent his first months in office making repeated attempts to end the investigation into Russia and his campaign. He asked Comey repeatedly to stop the probe, to pledge his loyalty. He asked the heads of the other major intelligence agencies, DNI, CIA Chief, NSA Chief to publicly discredit the investigation and also to intervene with Comey to end the investigation. He eventually fired Comey, by his own account, to end the Russia investigation. It is hard to imagine what more he could have done to impede or end the probe. It also seems clear that it must have been widely understood among the President’s top advisors that Trump was doing everything he could think of to end the probe."

http://talkingpointsmemo.com/edblog/taking-stock-of-trumprussia-on-the-eve-of-comeys-testimony

In fairness, I don't think it's been proven that Sessions knew Trump's purpose yet. Time will tell.

Here is what seems to be wrong with all of the criticism of sessions.

Doug stated: "As I understand it, the motive/intent of Trump in firing Comey is central to any assessment of whether Trump is guilty of obstruction of justice. In turn, if Sessions has reason to believe Trump wants to fire Comey only for an improper motive, it would seem unethical to offer up to Trump a facially proper motive to do what would still be done for truly improper reasons, no?"

You ignore the most obvious and reasonable possibility for what happened.

Let's assume that Trump wanted to fire Comey for an improper motive. Let's even assume that Sessions suspected as much. Your accusation that Sessions wrote the memo to offer up a "facially proper motive" is an assumption too far. You have no way of knowing this and likely never will. These three things can ALL be true.

1) Trump wanted Comey fired with improper reasoning.
2) Sessions suspects it.
3) Sessions believes Comey should be fired based on his actual conduct, thus writes the letter.

That would be a likely and honorable (for Sessions) scenario. And, again, that is after giving you two huge assumptions.

""After yesterday’s news breaks, it seems clear that President Trump spent his first months in office making repeated attempts to end the investigation into Russia and his campaign. He asked Comey repeatedly to stop the probe,..."

Once you got to this point, you should have stopped reading as the author does not know sh** from shinola.

Comey himself says that Trump never asked him to stop the investigation into his campaign and Russia. Trump was, as Comey understood it, merely talking about not going after General Flynn. Comey says this explicitly in his opening statement.

From Comey's written testimony: "I did not understand the President to be talking about the broader investigation into Russia or possible links to his campaign. I could be wrong, but I took him to be focusing on what had just happened with Flynn’s departure and the controversy around his account of his phone calls."

I agree, Bill, that there are no "neutral" folks talking about these matter, present company included. But the notion that AG Sessions genuinely thought Comey should be fired in May 2017 for his actions in 2016 --- and virtuously recommended as much to Prez Trump in May 2017 for only this reason --- just does fit with the surrounding facts and the timelines.

For starters, if this was AG Sessions' view, why doesn't he talk to Comey about his concerns? And if this has nothing to do with the Russia investigation, why doesn't AG Sessions write the dismissal justification memo himself rather than wait for DAG Rosenstein to do it? And, of course, why does this happen in May rather than sooner, and only after AG Sessions knows that Trump's real and growing concern is Comey's work in the Russia probe?

I am not looking for answers to these questions, nor do I expect you or others (or myself) to see these matters without various partisan biases. But, trying to be as objective as possible, I still see what AG Sessions did here as comparable to a corporate lawyer endeavoring to provide cover for an act he knows or should know is driven by an improper motive. Ergo my statement that AG Sessions actions here do not strike me as the work of an independent ethical AG.

Talk to Comey.

About what? Comey's actions and reasoning were pretty well known. Much of the rationale had to do with Comey losing the trust of much of the DOJ. Why Comey did what he did is almost moot at that point.

Why let Rosenstein do it.

See your posts above. Because he assumed that letting an Obama appointee do it would create less off the wall accusations of trying to stop the investigation. It's smart and not improper. BTW, why are you not throwing the same accusations towards Rosenstein?

Why not sooner?

From February 8-May 9 is practically light speed in DC, especially when the AG is coming into the DOJ with practically zero (the number may actually be zero) Trump appointees and is working exclusively with Obama people.

If he had done it his first week, you would be critical about Sessions firing Comey without a proper look into whether he deserved it. Not to mention, you would still be making the accusation it was about Russia. It would not have changed a thing with you or the Sessions critics.

Again, Comey gave no indication that he felt Trump was trying to stop the Russian investigation (he denies it), which significantly weakens your argument against Sessions which is based off that assumption.

"As I understand it, the motive/intent of Trump in firing Comey is central to any assessment of whether Trump is guilty of obstruction of justice."

Just curious.

Johnathan Turley said that obstruction of justice is not an option for investigations but for "proceedings." You obstruct a trial, a hearing, etc. In fact, this is even outlined in the Federal prosecutors manual.

Is he wrong or are you?

Tarls, I am not an expert on this statute, but 18 U.S. Code § 1505("Obstruction of proceedings before departments, agencies, and committees") would seem to be applicable if Trump fired Comey with the corrupt intent to "influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States." I can see the basis for Prof Turley saying an on-going FBI investigation is not a "proceeding," but I also see a strong argument the other way. As a generally matter, I tend to assume I am more wrong than Prof Turley.

(Moreover, and perhaps more important, Bill Clinton lied under oath and yet, sadly, avoid an impeachment conviction or any other real legal consequences save a disbarment in Arkansas. So I doubt Trump will need to invoke the Turley defense anytime soon.)

More to the point are the dueling stories and what still seems like an effort by a lawyer (AG Sessions) to provide cover for a boss (Trump) seemingly doing something improper. Whether a crime or not, I surmise it would be improper for Trump to fire Comey simply because he was unhappy about the Russia investigation. Trump admits that is why he fired Comey, and Comey's testimony makes plain that AG Sessions surely knew (or should have known) that Russia-probe tensions between Trump and Comey was why Trump wanted to fire Comey.

Given that basic reality, AG Sessions' decision (1) to directly recommend Comey's firing to Prez Trump after having recused himself from the investigation into Russian meddling in the 2016 election, and (2) to have DAG Rosenstein author a memo providing another rationale for Comey's firing, strikes me as worrisome even if AG Sessions sincerely believed the FBI would be better off with new leadership.

As a real politick matter, I agree 100% that any and everything Trump and Sessions do in this arena (or others) will be widely (and often unfairly) criticized. But I am not here for Trump/Sessions bashing, but rather just explaining why Bill's suggestion that AG Sessions is "too ethical" does not jibe with my understanding of his behavior in the Comey firing. As I have said before and will say again, what AG Sessions did here seems comparable to a corporate lawyer endeavoring to provide cover for an act he knows or should know is driven by an improper motive.

Decencyevolves: I have two questions for Bill, if he's inclined to answer them. Is he troubled by the President's behavior in the matter of his interactions and firing of James Comey? Why or why not?

I have two observations in response to your questions.

First, I worked in White House Counsel's Office, although a goodly while ago (for GHWB, a man of dignity and honor). We had a settled protocol for contacting the FBI or any other operating division of DOJ. Someone from our Office would call the Office of Legal Counsel at DOJ, and they took it from there. We observed this protocol to insure the relative independence that is, in my opinion, an important component of the prosecutorial function. I was particularly sensitive to this because my prior career (and, as it turned out when Clinton won, much of my future career) was as a federal prosecutor. My decisions in that capacity were based solely on objective rules and on the merits of the case before me. I continue to believe that decisions of this kind should be made solely on those bases (which is why, for example, I think Jeff Sessions and Rod Rosenstein's decision was correct).

Second, as many here know, I was a colleague and friend of Jim Comey when we worked together as Assistant US Attorneys for the Eastern District of Virginia. We were division chiefs, he as head of the Richmond Office and me as Chief of Appeals. I still think of him as a friend although I haven't talked to him in quite a while.

My opinion is that he is a man of integrity. I would trust him in the most important professional affairs I have -- indeed I would hire him if I could afford his fee at whatever fat firm he's going to wind up with.

Since I have personal experience with some of the processes and people involved, I admit my opinions may be biased, and readers should take that into account. For the same reason, I have said about all I'm going to on this score.

I appreciate your good faith and civil tone, while I think almost all your substantive positions are wrong.

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