Attorney General Jeff Sessions told a Senate panel Wednesday that he believes President Trump has the constitutional authority to pardon anyone and does not need to confer with the Justice Department, which traditionally has assisted presidents in such decisions.
The president “clearly has the constitutional power to execute pardons” without conferring with the Office of the Pardon Attorney, Sessions said during a hearing before the Senate Subcommittee on Commerce, Justice, Science and Related Agencies.
It was disclosed in March that last year Trump’s former lawyer floated the possibility of pardons for Paul J. Manafort, the president’s former campaign chairman, and Michael Flynn, the former national security adviser, if they faced criminal charges stemming from the investigation into Russia’s election interference, according to people familiar with the discussions. Manafort was indicted in October on charges of tax fraud and money laundering. Flynn pleaded guilty to lying to investigators.
Trump already has granted pardons to Joe Arpaio, the former Arizona sheriff convicted of violating a court order stemming from his department’s treatment of Latinos, and to Lewis “Scooter” Libby, Vice President Richard B. Cheney’s chief of staff, who was convicted of perjury and obstruction of justice after the disclosure of a CIA officer’s identity. Nobody faced charges for the leak itself. Both decisions were made without input from the Justice Department.
Sen. Chris Van Hollen (D-Md.) told Sessions that he had once said at a congressional hearing that it would be an abuse of power for the president to pardon someone without first going through the pardon attorney. Van Hollen said he did not believe that President George W. Bush or President Obama ever granted a pardon without first conferring with the U.S. Pardon Attorney’s Office, a division of the Justice Department. Sessions said he did not know.
After the hearing, a Justice Department spokesman said that in January 2017, before leaving office, Obama granted a pardon, without a recommendation from the pardon attorney, to retired Marine Gen. James E. Cartwright, a former vice chairman of the Joint Chiefs of Staff who had pleaded guilty to lying to the FBI.
Sessions also faced questions from Democratic lawmakers about his conversations with Trump and other White House officials about matters stemming from the Russia probe, including whether Sessions has recused himself from the investigation into Trump’s personal lawyer, Michael Cohen, whose office was raided by FBI agents April 9. That development was reported by Bloomberg News this week.
“It is the policy of the Department of Justice that those who have recused themselves not state the details of it or confirm the existence of an investigation or the scope of that investigation,” Sessions told the panel.
Sessions did defend his embattled deputy attorney general, Rod J. Rosenstein, who oversees the Russia investigation being led by special counsel Robert S. Mueller III, making Rosenstein a target of Trump’s attacks. Sen. Lindsey O. Graham (R-S.C.) asked Sessions for his opinion of Rosenstein. “He works every day to do the job he is called upon to do that got dropped into his lap,” Sessions replied.
Asked whether he had confidence in Rosenstein, Sessions said, “I do have confidence in him.”
He demurred, however, when asked by Sen. Patrick J. Leahy (D-Vt.) whether he would step down if Trump were to fire Rosenstein or Mueller.
“That calls for a speculative answer,” Sessions replied. “I’m not able to do that.”
Leahy said he was deeply concerned about the “president’s relentless and I think baseless attacks” on senior Justice Department officials, including Sessions.
“You and I are in total agreement, and that is that we care deeply about the integrity of the Justice Department . . . and I worry that the walls intended to protect independence and credibility are at risk of crumbling,” Leahy said. “You’re at the helm of a Justice Department under siege. I’ve been in [Congress] 44 years. I have never seen such attacks.”
During the hearing, Sessions testified about his priorities in the Justice Department’s $28.4 billion budget. He said one of them is “going after drug companies, doctors and pharmacists,” who, he said, are fueling the nation’s opioid epidemic.
On a major detention issue, Sessions said he expects that two Islamic State militants captured in Syria and believed to be the last remaining members of a cell that held and beheaded Western hostages would be “tried and held accountable for these horrific acts.” He declined to say definitively, however, whether the Justice Department would support prosecuting them in civilian courts vs. the controversialmilitary tribunals held in Guantanamo Bay, Cuba.
When prodded by Graham, Sessions indicated he was supportive of sending the men, former British citizens, to Guantanamo. But he acknowledged that at the Justice Department, “we have had success trying a lot of these cases in federal court.” He said that success was achieved even if the rules of evidence were stricter, which he suggested favored the defendants and sometimes revealed intelligence-gathering techniques. The military commission at Guantanamo has produced far fewer convictions.
He also rapped the British government, which has steadfastlyrefused to take the two men, El Shafee Elsheikh and Alexanda Kotey, who are nicknamed “The Beatles” for their British accents. “I have been disappointed, frankly, that the British . . . are not willing to try the cases but pretend to tell us how to try them,” Sessions said.
The Trump administration is still deliberating what to do with the militants, who are being held by U.S. allies in Syria. Sen. Jeanne Shaheen (D-N.H.) said that families of American hostages who were killed, it is believed, by the Beatles’ cell, have pushed for the men to be tried in an international court or a civilian court in the United States. The families, she said, did not want them sent to Guantanamo, which they believed would “provide the terrorists another opportunity to use Guantanamo as a recruiting tool.”
Asked by Graham if he thought the U.S. government would ever begin sending detainees to Guantanamo again “in my lifetime,” Sessions replied: “I don’t know. I just have to be honest with you. It could be if we have a surge in arrestees” captured overseas.
Sen. Jerry Moran (R-Kan.) asked Sessions about a citizenship question the Justice Department wants included in the 2020 census. It has drawn a legal challenge from civil rights groups who say it will discourage noncitizens, especially undocumented immigrants, from participating and thus result in an undercount.
Sessions said that the question — last included in the 1950 census —“can help us in determining a number of issues, particularly in our civil rights division.” He said he was limited in what he could say because of the litigation, but offered to provide the senator with “legal reasons” why the question is justified.
The question will come last on the form, he added. “It shouldn’t scare people. “They don’t have to answer it, really. . . . I believe the concerns over it are overblown,” he said.
Toward the end of the hearing, Sen. Dianne Feinstein (D-Calif.) made a nod to the president’s attacks on Sessions, who had spent 20 years as the Republican senator from Alabama. “Welcome back, attorney general,” she said. “I’m sure you miss us greatly.”
This story was updated to clarify that no one was charged for disclosing the identity of a CIA officer in the case for which Lewis “Scooter” Libby received a pardon from President Trump, and to reflect that President Obama granted a pardon to Gen. James Cartwright without first receiving a recommendation from the U.S. Pardon Attorney’s Office.Matt Zapotosky contributed to this report.