Sessions’s recusal — his justification for it, and the scope of how he defines it — is central to the integrity of the FBI’s investigation into Russian interference in our election, and possible Trump campaign collusion with it. That’s because Sessions was at the center of advising the Trump campaign on national security issues during the campaign and has failed to be forthcoming about how that role might have blended with his communications with Russian officials throughout. This raises questions as to how impartially he can exercise his role as the nation’s chief law enforcement officer and whether he may still be in a position to influence the Russia probe.
Sessions’s testimony, though, failed to put to rest any doubts Senate investigators, or the public, have about many of the matters relating to his recusal, and whether he is adhering to it. In fact, Sessions only raised new and potentially damaging questions about his actions and cast doubt on his own truthfulness about what the recusal entails.
Sessions’s testimony, then, is not likely to lay to rest doubts swirling around his possibly conflicted role, and will probably only heighten them. In particular, his testimony raised two questions:
1) Why did the recusal not occur earlier, given Sessions’s explanation today about the reasons for it and its timing?
2) Why, if he had recused himself from the Russia investigation, did he participate in President Trump’s decision to fire FBI Director James B. Comey, if, as Trump has admitted, he fired Comey because of the Russia probe?
We learned today that Sessions was considering recusal long before he took the formal step on March 2. He claimed he did not recuse himself because of any concern that he was implicated as a witness or subject of the FBI’s investigation into Russia’s interference in the 2016 election. Rather, he said, he was following a DOJ regulation, 28 CFR 45.2.
“That regulation states,” Sessions told the committee, “that department employees should not participate in investigations of a campaign if they have served as a campaign adviser.”
More specifically, the regulation prohibits Justice Department employees from participating in a criminal investigation if that employee has a “personal or political relationship” with a person or organization who is the subject of the investigation, or who “would be directly affected” by the investigation’s outcome. It would appear, then, that the possibility of the need for such a recusal should have been known by Sessions and other top officials in the Trump administration well before March 2.
Indeed, under questioning, Sessions admitted that he had begun discussing the possibility of recusal on Feb. 10, the day after he was sworn in as attorney general. But he did not answer the question of why, if those discussions began so early in his tenure, he waited another three weeks to recuse himself.
More vexing is why the Trump administration did not discuss recusal even earlier than Sessions’s swearing-in date. Recall that former acting attorney general Sally Yates testified to the Senate Judiciary Committee on May 8 that, as early as Jan. 26, she had warned the White House counsel’s office that then-national security adviser and Trump campaign adviser Michael Flynn could be vulnerable to Russian blackmail. Those conversations between Yates and the White House counsel took place after Sessions’s confirmation hearing on Jan. 10, and before his swearing in, on Feb. 9.
That timing would strongly suggest that the Trump administration was not taking recusal seriously before Sessions was sworn in and continued to not take it seriously even after Flynn was forced to resign on Feb. 13. But by Sessions’s own explanation, the DOJ regulation should have required him to recuse himself because of his political relationship with Flynn, someone whom DOJ knew, internally, was under particularly intense scrutiny. That should have been enough to get Sessions — who had served as the chair of the Trump campaign’s national security advisory team and therefore certainly had a relationship with Flynn — to think he needed to recuse himself from any Russia investigation.
Instead, Sessions didn’t recuse himself for another 15 days, and only under pressure. That pressure came only after The Post reported that Sessions had met with Russian Ambassador Sergey Kislyak at the GOP convention in July and in his Senate office in September — contradicting his confirmation hearing testimony that he had not had any communications with Russian officials.
But the recusal questions do not end there. Sessions also dodged Sen. Dianne Feinstein’s (D-Calif.) questions about why, if he had recused himself from the Russia investigation, he participated in Trump’s decision to fire Comey, on May 9 (notably, the day after Yates’s testimony about Flynn). Trump, who reportedly had already decided to fire Comey, had asked Sessions and Deputy Attorney General Rod J. Rosenstein to prepare a memo justifying his decision. Trump later admitted to Lester Holt of NBC News that he fired Comey because of the Russia investigation.
Today, Sessions tried to deal with this in multiple ways. First, he said he was “comfortable” providing the reasons for firing Comey in a memo to the president. When asked for details on his conversation with the president that led to the memo, he claimed he was not able to “discuss” or “confirm or deny the nature of private conversations I may have had with the president on this subject or others.” But that doesn’t answer the question of how broadly — or narrowly — Sessions construes his recusal. In fact, it only raises more questions about his adherence to it.
Later, Sessions was asked more pointedly by Sen. Ron Wyden (D-Ore.), “Why did you sign the letter recommending the firing of Director Comey when it violated your recusal?” Sessions denied that signing the letter violated his recusal. Wyden responded that this “doesn’t pass the smell test.” But Sessions said nothing today that meaningfully justified his participation in the Comey firing despite his recusal.
For Sessions — and the White House — all these questions aren’t likely to go away anytime soon.