If Jeff Sessions is confirmed as attorney general, it will mean likely sweeping changes for the Justice Department, especially on civil rights policies.
It also could mean even more investigation of Hillary Clinton’s email practices and her family’s charitable foundation.
Sessions, a Republican senator from Alabama who previously served as a U.S. attorney, has been an outspoken critic of the FBI’s investigation into Clinton’s use of a private email server, saying on Fox Business Network last month he was “uncomfortable with the way the investigation was conducted” in part because witnesses were not compelled to testify before a grand jury. He also has said it “seems like” the FBI had not fully investigated the dealings of the Clinton Foundation while Clinton was secretary of state and that, in his view, Clinton might have used her position to benefit the foundation.
“The fundamental thing is you cannot be secretary of state of the United States of America and use that position to extort or seek contributions to your private foundation,” Sessions said on CNN. “That is a fundamental violation of law and that does appear to have happened.”
Those statements are important because, as attorney general, Sessions would have the power to reignite the email investigation, which FBI Director James B. Comey has recommended be closed without charges. He also could breathe new life into a separate investigation of the Clinton Foundation — which agents in the FBI’s New York Field Office have wanted to probe, despite the misgivings of career-public-integrity prosecutors about a lack of real evidence.
Pursuing such cases, of course, would be called a form a political retribution by critics. When Donald Trump said during a debate that he would appoint a special prosecutor to look into the Clinton email case and Clinton would “be in jail” if he were president, even former attorney general Michael Mukasey — long a critic of Clinton and her private email server — said he would advise against such actions.
“It would be like a banana republic,” Mukasey said at the time. He added later: “Putting political opponents in jail for offenses committed in a political setting, even if they are criminal offenses — and they very well may be — is something that we don’t do here.”
But as president-elect, Trump has not backed down from the idea. Asked on “60 Minutes” if he would appoint a special prosecutor, he said, “I’m going to think about it” and later, “She did some bad things.” He ultimately did not answer the question.
“I don’t want to hurt them. I don’t want to hurt them. They’re, they’re good people. I don’t want to hurt them. And I will give you a very, very good and definitive answer the next time we do ‘60 Minutes’ together,” Trump said.
Representatives for Trump, Sessions and the Clinton Foundation did not immediately return messages seeking comment. A Clinton campaign spokesman said they were not commenting on any cabinet appointees.
Comey has said “no reasonable prosecutor” would bring a case against Clinton for her email practices, which allowed classified material to traverse a private server. Sessions seems to take a different view and has criticized the FBI’s tactics in coming to that conclusion. On “The Howie Carr Show” last month, he said he “tried not to be critical of Comey at first, but more that comes out, the more I’m concerned about it.”
He questioned in particular why top Clinton aide Cheryl Mills was allowed to sit in on Clinton’s FBI interview and said congressional hearings would be necessary to assess what happened. (Comey has said Mills was Clinton’s lawyer, and the FBI has no ability to control who she brings to a voluntary interview).
“I am troubled about it,” Sessions said. “A case of this high-profile should have been handled as clean as possible, with the least possible ability for anybody to question what was done, and they left a lot of things out there that caused real questions in my mind, and it’s troubling.”
Comey himself is in the middle of a 10-year term, though it is technically possible — if politically difficult — for Trump to fire him. Trump declined to comment on that question during his “60 Minutes” interview.
Even if Sessions were to accept Comey’s recommendation on the email investigation, that would not preclude pursuing a separate investigation of the Clinton Foundation. Agents in the FBI’s New York Field Office pitched such a probe to career-public-integrity prosecutors earlier this year. Those prosecutors, and at least some in FBI leadership, though, believed they did not have enough evidence to proceed. That left some agents frustrated, though it did not end the matter entirely.
In August, Justice Department officials learned New York agents were still taking steps to advance their case and advised them to hold off — in accordance with department policies — until after the election. Sessions, it would seem, would be far more sympathetic to the New York agents’ side of things; he said on CNN outright that an investigation was warranted.
“The evidence indicates to me that this should be fully investigated. I cannot say that Mr. Comey has not completed a full investigation but it seems like he has not,” Sessions said. “And I think there is a cloud over this, and just because he might conclude there is not a chargeable offense does not indicate that there is no wrongdoing.”