In the wake of Wednesday’s revelation that United States Attorney General Jeff Sessions spoke with Russia’s ambassador to the US while working with the Donald Trump campaign, despite denying those contacts during his confirmation hearings, key Republican and Democratic lawmakers are calling for him to recuse himself from overseeing any Justice Department investigation into contacts between the campaign and the Russian government. Some are even saying he needs to resign.
It’s a bombshell of a story. And it’s one with a clear and disturbing precedent.
In 1972, Richard G. Kleindienst, the acting attorney general, appeared before the Senate Judiciary Committee in a confirmation hearing on his nomination by the then president Richard Nixon to be attorney general. He was to replace attorney general John N. Mitchell, who had resigned in disgrace and would later be sent to prison in the Watergate scandal.
Several Democratic senators were concerned about rumours of White House interference in a Justice Department antitrust suit against International Telephone and Telegraph Corporation, a campaign contributor to the Republican National Committee. They asked Kleindienst several times if he had ever spoken with anyone at the White House about the ITT case. He said he had not.
That wasn’t true. Later, after Kleindienst was confirmed as attorney general, the special prosecutor, Leon Jaworski, and his team uncovered an Oval Office tape recording of a phone call in which Nixon told Kleindiesnt to drop the ITT case. Kleindienst claimed that he thought the senators’ questions were limited to a particular period, not the entire time during which the case was pending.
Jaworski didn’t buy it. He filed criminal charges against Kleindienst, who was forced to resign as attorney general. Eventually Kleindienst pleaded guilty to failure to provide accurate information to Congress, a misdemeanour, for conduct that many observers believed amounted to perjury. He was also reprimanded by the Arizona State Bar.
Last month, during Sessions’s confirmation hearing for attorney general, Senator Al Franken, Democrat from Minnesota, asked Sessions what he would do if he learnt of evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the 2016 campaign.
“I’m not aware of any of those activities,” Sessions answered, adding, “I have been called a surrogate at a time or two in that campaign, and I did not have communications with the Russians.” Sessions also, on his written Senate confirmation questionnaire, denied having had any communications about the 2016 election with the Russians.
We now know that Sessions had at least two conversations with the Russian ambassador to the US in July and September 2016 while Sessions was an adviser to the Trump campaign.
Once again, we see an attorney general trying to explain away misleading testimony in his own confirmation hearing. A spokeswoman for Sessions says that “there was absolutely nothing misleading” about his answer because he did not communicate with the ambassador in his capacity as a Trump campaign surrogate. His contacts with the Russian ambassador, he claims, were made in his capacity as a member of the Senate Armed Services Committee.
That may or may not have been the case (individual senators ordinarily do not discuss committee business with ambassadors of other countries, particularly America’s adversaries). Regardless, Sessions did not truthfully and completely testify. If he had intended to say that his contacts with the Russians had been in his capacity as a member of the Senate Armed Services Committee and not for the Trump campaign, he could have said that. He then would have been open to the very relevant line of questioning about what those contacts were, and why he was unilaterally talking with the ambassador of a country that was a long-standing adversary of the US.
He did not reveal the communications at all, however. He did so knowing that Franken was asking about communications with the Russians by anyone working for the Trump campaign, including people who, like Sessions, had other jobs while they volunteered for the Trump campaign. Sessions’s answer was at best a failure to provide accurate information to Congress, the same conduct that cost Kleindienst his job.
And this time, unlike in 1972, the attorney general’s misleading testimony involves communications not with the president of the US, but with a rival nuclear superpower. In 1972, any federal employee who provided such inaccurate information under oath about communications with the Russians would have been fired and had his or her security clearances revoked immediately, and probably also would have been criminally prosecuted.
The Cold War may be over, but Russian support for far-right and nationalist movements globally is on the rise.
US President Donald Trump has already fired his national security adviser, Michael Flynn, for misleading Vice-President Mike Pence about his conversations with the Russians. Misleading the US Senate in testimony under oath is at least as serious. We do not yet know all the facts, but we know enough to see that Sessions has to go as well.
— New York Times News Service
Richard W. Painter is a professor at the University of Minnesota Law School. He was the chief White House ethics lawyer from 2005 to 2007.
