Jeff Sessions Does Not Understand The Role Of The DOJ

Brendan Nyhan has a nice tweet thread about the dangers that Trump presents to the rule of law. The thread ends with the statement, “The hold of the rule of law in this country may be tested sooner than we think.” Watching the testimony of Jeff Sessions yesterday, it was pretty hard not to conclude that the test that Nyhan refers to is already well under way.

Not long after the hearing began, when the first Democrat, Diane Feinstein, started her questioning, Session first invoked this mythical privilege of confidential conversations between the President and his cabinet members. There is no such privilege. Sessions could try to invoke Executive Privilege but that has to be given by the President. Trump has not declared that these conversations are privileged and therefore Sessions can not refuse to answer Feinstein’s or subsequent Democratic Senators’ questions about his conversations with Trump about Comey and the Russians. The reason that he gets away with it, however, is because of the supine nature of Republicans in Congress and on this committee. The committee could force Sessions to testify but that would require issuing a subpoena to require it. But everyone, Sessions and the Democrats, knows that Chuck Grassley will never go down that road.

In general, Session had great difficulty answering almost any question related to his recusal, Comey’s firing, and anything to do with Russia. Senator Franken pressed him on his continually evolving statements to the committee about his contacts with Russia. Yesterday, he said that he couldn’t remember the content of his discussions with Russian Ambassador Kislyak, after earlier categorically stating he never discussed anything related to the campaign with the Russians. In addition, he could not explain why he was involved in Comey’s firing when he had recused himself from the Russian investigation, simply saying that evaluating Comey’s leadership, which involved the handling of many cases, was not part of the recusal, weakly adding, “I recused myself from any investigation into the campaigns for president, but I did not recuse myself from defending my honor against scurrilous and false allegations.”

Feinstein also pressed Sessions on the peculiar decision of the Justice Department to defend the President in these lawsuits over the Emoluments Clause. Sessions response was shocking and, honestly, frightening, “I would say that it is the responsibility of the Department of Justice to defend the office of the presidency in carrying on these activities against charges that are not deemed meritorious.” Actually, no. It is definitely not the job of the Justice Department to defend the office of the presidency. It is to defend the Constitution and the laws of the United States. If the DOJ wants to provide object analysis and a constitutional position in an amicus brief, that would be fulfilling its responsibility, rather than defending the President. After all, this whole case revolves around the fact the President decided, in a break with modern precedent, to mix his personal financial affairs with his office. There is no reason, rather than perhaps keeping their own jobs, for the DOJ to be defending the President in a case that involves his person financial decisions. As Charlie Pierce notes, “That’s how Mitchell and the rest of them ended up in the federal pokey”.