Sessions Testifies, Says Even Less

Congress hasn’t been this popular since Iran-Contra.

I don’t mean ‘popular’ as in ‘people approve of it’; even the best Congresses rank slightly below pit scorpions on the trustworthiness index.  But it’s been the highest-rated show on daytime television, and that’s pretty impressive for a hidebound government institution.

The most recent episode was the televised testimony of Attorney General Sessions before the Senate Intelligence Committee.  A word here about the name of the committee:  It does not imply that these Senators, unlike the rest of Congress, possess brains and know how to use them.  No, the formal name is the Senate Select Committee on Intelligence; I think they just prefer the implied compliment of the other version.  But I digress.

The SSCI has been holding private hearings, requesting high-ranking administration officials to attend.  In the wake of Jim Comey’s firing, a few sessions have been made public.  The ostensible purpose of the hearings is to examine the extent of possible Russian interference in the 2016 election; I suspect the true motivation is to give ranking senators screen time so the public can consider which they would prefer as their next president.  Perhaps I’m getting cynical… but then, it is Congress.

Last week, they brought in Comey himself and televised it; there were even several public gatherings where the more rabid anti-Trump people could watch and be disappointed together.  This week, they called A.G. Sessions to the stand.  And, just as with the Comey testimony, the most important things today are what didn’t get said.

Sessions, like Comey, sent a written version of his opening statement so the Committee would have time to be prepared with follow-up questions.  (You can read that here.)  Unlike Comey, he read that statement in front of the Senators and cameras, and it contained almost everything of any real import that he had to say.  The most telling revelation was that he had recused himself from the Russia investigation about as soon as he took office, and so didn’t actually know anything more than he’d read in the papers.  He also stridently and very plausibly denied any wrongdoing — and he went into specifics.

Following the statement, Sessions answered questions from every Senator on the committee.  I should amend that:  He answered some questions.  The ones he didn’t answer were consistent and revealing in their pattern.

First, he steadfastly refused to answer questions about the Russia investigation.  He never contradicted his statement that he’d recused himself on taking office — not as a result of any particular incident, as is commonly supposed in the press, but instead because the mere fact of his participation in the campaign would create a potential conflict of interest into any investigation whatsoever of the election.  (This is codified in DoJ regulation 28 CFR 45.2, the full text of which can be found here if you’re masochist enough to read it.  Or you can trust me: it’s a very real thing.)

Second, he denied rumors that Comey’s firing had anything to do whatsoever with the Russia investigation.  As evidence, he’d cited his own recusal in that regard, and the fact that he himself had forwarded and endorsed the internal recommendation memorandum.  Since his only knowledge was with respect to the professionalism of Comey’s actions in the Clinton email investigation, he made his case — and refused to speculate beyond it.

Third, he repeatedly declined to reply to any question regarding communications between himself and the President that hadn’t been specifically approved, or most questions about internal discussions on policy.  This latter is in keeping with DoJ regulations, by which the Attorney General is indeed bound; the former is based on the doctrine of Executive Privilege, in that it is for Trump and not Sessions to make that particular call.

A note on Executive Privilege:  Again, this is a very real thing.  Contrary to what’s been reported on CNN and in the Post, it’s not explicitly codified within the Constitution itself, but rather exists implicit to the doctrine of separation of powers, and due to the Executive’s primacy in that branch of law.  The first recorded invocation was by Washington himself, who denied a Congressional request to review documents pertaining to treaty negotiations.  Most famously, it was delineated specifically in United States v. Nixon over the Watergate tapes.  And, more recently, it was exercised successfully by then-A.G. Eric Holder to protect Obama during the Fast And Furious scandal and investigation (though he was still held in contempt of Congress as a result — and many of the votes to censure him came from his own party).

In two of these cases — Nixon and Fast And Furious — Congress eventually was able to compel review of the documents in question through legal process.  It was in fact this which led to Nixon’s resignation; Obama was less vulnerable (and less involved).  So it’s to be understood that this is not umbrella protection, but rather a well-codified process which involves particular and specific steps, including subpoenas directed to the Office of the President as well as judicial review.

As a consequence of all this, it’s quite clear that Sessions acted correctly, properly, ethically, and professionally by not answering these questions during his testimony.  It’s also quite evident from the style of questioning by Senators Angus King and Kamala Harris that some of the unanswered questions will certainly be revisited — which, again, is just as it should be.

What actually did end up getting said is similarly important, and most of it wasn’t said by Sessions.  Various senators, particularly Feinstein, tacitly acknowledged the politicization of the investigation.  Senator Risch told us outright that the committee is making no progress on issues of substance, but is concentrating on scandal.  Lankford and “Coal Joe” Manchin both spoke as to the validity of Executive Privilege as described by Sessions, and Langford (at length) said that Rosenstein had confirmed the effectiveness of the recusal.  And, tellingly, Tom Cotton informed us that the Committee, after six months of investigation, has uncovered absolutely nothing to suggest the Trump campaign colluded with a Russian effort to influence the election.

What Sessions himself said was mainly in his statement.  Sessions explained the apparent differences in his answers about meeting Russians — and did so successfully, I might add, completely debunking the claim that he’d lied to Congress during his confirmation.  He very plausibly denied any collusion with Russian officials during the campaign, and he did so in a manner that showed the accusation as completely ridiculous.

These hearings are far from over.  Much of it may be hype and partisan infighting, but it’s also true that there remain reasonable doubts as to actions taken by such as Paul Manafort, and Trump himself hasn’t been entirely cleared of impropriety by any means.  But Sessions certainly has been, at least to my own satisfaction.

And, I hope, to yours.

Postscript — A final note on Kamala Harris (not the wrestler) and Angus King (not a steak):  Both of these senators were certainly aware of the procedures associated with Executive Privilege, as “Coal Joe” later confirmed.  Yet both badgered Sessions quite thoroughly on the subject — King rather more lucidly than Harris.  While their respective presidential ambitions should not be entirely discounted, I want to take care to mention that they were each justified in so doing.  It is a part of the purpose of these hearings to get statements entered into the legal record in order to provide grounds for future court actions as needed, and since judicial review is an important part of Executive Privilege, their respective requests for information provided grounds for instituting that review.  So — uncivil, perhaps; a bit incoherent, certainly.  But not unjustified, and therefore not improper, no matter what Fox News might say.

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