A Few Thoughts on the Sessions’ Hearing

June 13, 2017 5:52 p.m.

Let me share a few quick thoughts on today’s Sessions hearing.

The big and overriding takeaway from this hearing is that Sessions declined to answer almost all the pertinent questions – in most cases because they involved his discussions with President Trump and in at least one case (or this was what I understood him to be saying) discussions with other leaders at the Department of Justice. There’s an important back and forth about what basis he had for this refusal. That is important in itself. But the gist, as Sessions eventually seemed to concede, was that he was refusing to answer because he did not want to preclude or render moot the President’s ability to assert executive privilege.

Sessions himself eventually seemed to jettison this idea about longstanding DOJ policy and come back to what we might call this deferred executive privilege. Again, whole conversation about what the White House is up to sending people up to the Hill where they know they’ll get these questions and not making a decision in advance. But big picture, Sessions declined to answer most or all of the critical questions on the basis of executive privilege.

One more point on this front, Sessions appeared willing to answer some questions about what the President said in specific conversations and not others. I’d be curious to hear from lawyers whether this puts the asserted privilege on weaker ground.

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We leave this hearing a bit murky on what I think was the main point: just what James Comey was referring to when he talked about Session’s role in any Russia related investigation being ‘problematic’. It certainly seems like Comey was referring to a third meeting at the Mayflower Hotel. That appeared to be what he mentioned in the subsequent closed session. Sessions categorically denied anything more than perhaps a handshake and pleasantries that he forgot.

Based on published reports that the US picked up Russian discussions of such a meeting or conversation, it seems like there are intercepts with Russians saying there was some substantive conversation, maybe about a bad topic. But Sessions is flatly denying that. That is not impossible. People brag about things that aren’t true. More importantly, intelligence services will sometimes put disinformation into a channel they know may or is being monitored.

This part of the story seems up for grabs on a few fronts. There’s too much we do not know.

What did jump out at me across the whole testimony is that Sessions claims he recused himself from the Russia probe simply and only because it involved a presidential campaign of which he could reasonably be viewed as a top advisor. This is almost certainly not true. Sessions recused himself the day after The Washington Post reported two meetings with Ambassador Kislyak which Sessions had failed to disclose at his confirmation hearing. Sessions now claims that that he had made what amounts to an in pectore recusal the day after he was sworn in (little shout out to you canon lawyers out there). So in Sessions’ mind, what we thought was a recusal was just the formal version of what he had done in his head weeks earlier. Again, this seems almost certainly false. Inevitably this elaborate ruse undermines his credibility about all the rest. Comey seemed to have in mind something more than simply a technical reason requiring Sessions to recuse himself.

Big picture: Sessions refused to answer the biggest questions; he was almost certainly not telling the truth about what triggered his refusal. Most of the rest was atmospherics.

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