CNN is reporting that top congressional Democrats are planning to take an unexpectedly soft line on new and potentially very damning information that has emerged about Attorney General Jeff Sessions and the Russia probe.
Why? Because Democrats understand full well that Sessions, of all people, could end up being pivotal to preventing President Trump from covering up the findings of special counsel Robert S. Mueller III’s investigation.
It’s a complicated and interesting situation — and it’s unclear where it’s going to end up.
A few days ago, the news broke that in a recent court filing, former Trump campaign adviser George Papadopoulos contradicted Sessions’s previous sworn testimony about how Sessions reacted when Papadopoulos proposed the idea of Trump meeting with Vladimir Putin during the 2016 campaign.
Sessions had told Congress that he “pushed back” on the suggestion. But in the filing, Papadopoulos’s lawyers claimed that in fact, Sessions “appeared to like the idea and stated that the campaign should look into it.”
Now, per CNN, Democrats are holding back in going after Sessions over the discrepancy, because they worry that if they go too hard at Sessions, it could provide Trump with a pretext for firing him. But note why they fear this (emphasis added):
Democrats say they want Sessions to remain in the job because he is recused from special counsel Robert Mueller’s investigation, which Deputy Attorney General Rod Rosenstein is overseeing. A new attorney general could take the reins and potentially curtail the Mueller probe — or deny Mueller’s report on the probe from ever being released to the public, they fear.
New York Rep. Jerrold Nadler, the top Democrat on the House Judiciary Committee who questioned Sessions about the meeting last year, told CNN that “right now, I don’t think we want to do anything” about Sessions, worried that a new attorney general could put Mueller’s report “in a safe” to deny making it public.
Because of this, as Nadler put it, “we want him there — for the time being, at least.”
This is a reasonable fear. As I noted the other day, the special-counsel regulations stipulate that Mueller must deliver a confidential report to Rosenstein, and Rosenstein must provide an explanation for the conclusion of the investigation to the bipartisan leaders of the judiciary committees in both chambers. Rosenstein has broad discretion to determine how much information he puts in that explanation.
Trump lawyer Rudolph W. Giuliani has said Trump may try to block the transmission of all or parts of that report — which presumably would contain findings on possible collusion, or obstruction of justice, or both — by claiming executive privilege. That probably won’t work. But what could work is that, if Trump fires Sessions and replaces him with a loyalist who does not recuse himself from the investigation, that person could then dramatically limit what’s in that report or what information is specifically transmitted to Congress.
We already know that Trump very well may fire Sessions after the midterm elections. If he does, it’s at least plausible that Trump might try to execute this scenario that Democrats fear.
Then what? Well, as legal expert Andrew Kent laid out to me, at that point the question becomes whether Congress would subpoena a fuller explanation, or subpoena Mueller’s findings in some form, from the Justice Department. But there’s no guarantee that Republicans, should they retain control of both chambers, would do this.
And so, for now at least, Democrats are in the terrible position of having to count on Sessions — and his ongoing recusal — as their best shot at Mueller’s findings seeing the light of day. This, despite the fact that they find Sessions objectionable on so many other fronts, especially concerning the Justice Department’s aggressive pullback when it comes to defending voting and civil rights and exercising oversight of local policing abuses.
But if Trump does fire Sessions, the question of whether Congress ever does try to get Mueller’s findings released in some form could turn on who wins the midterm elections. If Democrats win, they will of course do that — another reminder that a Democratic victory may be the only conceivable way we ever see Trump face something approaching true accountability. As Nadler has now publicly clarified, if this doesn’t happen, Democrats fear the very real possibility of a coverup. For good reason.