A TEST FOR JEFF SESSIONS

[This post was also published at The American Lawyer on January 13, 2017.]

The Justice Department’s Inspector General is looking into James Comey’s disclosures of the Clinton email investigation. But I’m not confident that he’ll reach the most important issue in that debacle: the underlying leaks that probably contributed to Comey’s actions. That will require Jeff Sessions to pick up the baton.

During his Senate confirmation hearings on January 10, Senator Sessions (R-AL) assured colleagues that he’s not Donald Trump’s lackey. Here’s his first test: Find out who at the FBI leaked information to Rudy Giuliani during the final weeks of the campaign.

Those leaks probably forced FBI Director James Comey into the corner producing actions that cost him and the Bureau integrity for years to come. They may have swung the election to Trump, too, but done is done. It’s not about re-litigating the last election. As United States attorney general, Sessions has to assure the integrity of the next one. 

Roll the Tape

In October, polls showed Trump losing so badly that he was likely to cost Republicans the Senate. Three months earlier, Director Comey had announced that no reasonable prosecutor would bring criminal charges against Hillary Clinton for her use of a private email server while she was secretary of state. But in an unprecedented press conference, he’d opined about her recklessness anyway. That kept Trump’s “Crooked Hillary” rally theme alive. Even so, as summer turned to fall, the email-gate story was losing its legs.

On October 25, Rudy Giuliani appeared on Fox & Friends. When a host asked whether him Trump had anything other than “some more inspiring rallies” planned for the remaining 14 days of the campaign, Giuliani chuckled.

“Yes,” he grinned.

“What?” a co-host asked.

“You’ll see,” Giuliani answered in a full-throated laugh. “We’ve got a couple of surprises left. I call them surprises in the way we’re going to campaign, to get our message out there. Maybe in a little bit of a different way. You’ll see, and I think it’ll be enormously effective.”

Giuliani then discussed how “all of these revelations about Hillary Clinton, finally, are beginning to have an impact.”

On October 26, conservative radio talk show host Lars Larson interviewed Giuliani.

“There’s a kind of revolution going on inside the FBI about the original [July] conclusion being completely unjustified and almost a slap in the face of the FBI’s integrity,” Giuliani said. “I know that from former agents. I know that even from a few active agents who, obviously, don’t want to identify themselves.”

The same day, Giuliani appeared with Fox reporter Martha MacCallum. As the interview ended, he interrupted her to volunteer, “And I think he’s [Trump] got a surprise or two that you’re going to hear about in the next few days.”

MacCallum tried to conclude the interview, but Giuliani kept pushing: “I mean, I’m talking about some pretty big surprises.”

Finally, MacCallum took the bait.

“I heard you saying that this morning,” she said. “What do you mean?”

“You’ll see,” Giuliani laughed.

Friday, October 28

Shortly after Giuliani’s teasers, Comey violated Justice Department guidelines with a letter informing Congress that the Bureau was reviewing additional evidence relating to the Clinton email investigation. Immediately, Giuliani backpedaled.

“I don’t know anything about leaks from the FBI or the Justice Department,” he told CNN’s Wolf Blitzer. “I haven’t talked to anybody in the FBI or Justice Department.”

When Blitzer confronted Giuliani with the Lars Larson interview, Giuliani responded, “Well, the information I’ve been getting is from former FBI agents. If I did say that, that was wrong.”

But Giuliani’s distinction doesn’t help the Bureau. Whether the leaks came directly from active agents, or whether active agents leaked to retired agents who then went to Giuliani, they originated within the FBI. In addition to professional responsibilities of confidentiality under the ABA Standards on Prosecutorial Investigations, agents sign employment agreements that have sharp non-disclosure teeth. Certain FBI personnel working on the Clinton investigation also signed a “Case Briefing Acknowledgement” in which they agreed, “[D]ue to the nature and sensitivity of this investigation, compliance with these restrictions may be subject to verification by polygraph examination.”

Lie detectors!

Wednesday, November 2 

Less than a week before Election Day, another FBI leak produced a new bombshell. Bret Baier of Fox News cited “two separate sources with intimate knowledge of the FBI investigations” for what turned out to be a bogus report. He said that the Clinton investigations would likely to lead to an indictment. Trump milked that one. As rally crowds responded with “Lock her up” even more loudly than before, some members of the mob added, “Execute her!”

By Thursday, Baier admitted that he’d spoken “inartfully” about the false FBI report. By Friday, he was in full retreat: “That just wasn’t inartful, it was a mistake and for that I’m sorry.”

When MSNBC’s Brian Williams grilled campaign manager Kellyanne Conway on whether Trump would stop using the earlier false report in his stump speech, she smiled and said, “Well, the damage is done to Hillary Clinton…”

Sunday, November 6

Then Comey sent another letter confirming that his earlier missive had been a false alarm. But by then, early voters had cast 40 million ballots — almost 30 million of which came after his October 30 letter. Meanwhile, Trump had spent the week telling crowds that Clinton’s problems were “bigger than Watergate” and that criminal investigations into her dealings would continue for years into her presidency.

When confronted with Comey’s latest exoneration of Clinton, Kellyanne Conway kept her smile as she told MSNBC, “We have not made this a centerpiece of our messaging… This has not been front and center of our campaign.”

If all of this had happened to Trump, hearings in the Republican Congress would have begun immediately after the election. Rudy Giuliani would be under oath and senators would be asking him to name his FBI sources — active or retired.

In fact, Trump said that he wanted a full-scale investigation into leaks of the U.S. intelligence report on Russian hacking. The ones that emanated from the FBI are far more consequential to the future of American democracy.

4 thoughts on “A TEST FOR JEFF SESSIONS

  1. Steve,

    I enjoyed your blog greatly up until this election. I am not enjoying your blog of late, since it smacks of what the Republicans did to Barrack Obama–criticize everything the guy did. Quite unfair. Why imitate the bad behavior of Republicans?

    I am a Democrat who did not vote for Donald Trump. I think we have to respect the election and give the guy a chance. What is obvious to me is that he says many things, many outrageous, that he apparently does not mean. Only time will tell. I have enough faith in our system of government that if he tries to drive the US off the cliff, the other branches of government will check him.

    You are certainly entitled to your viewpoint and to blog about it as often as you wish. I just won’t be reading your blog anymore and will unsubscribe, since there is enough hyper-partisan on television (that also sickens me).

    • Ed,

      I’m sorry to lose you as a reader. Frankly,it would be easier to “accept the election” if: 1) Throughout the election, Trump hadn’t embraced Putin (while criticizing anyone who crossed him — up to and including the Pope and now a defenseless local union leader in Indianapolis) and still does; 2) U.S. intelligence agencies hadn’t concluded unanimously that Putin had a candidate in the election (Trump) and launched a sophisticated campaign to help him win; 3) Trump hadn’t then launched his own disparagement campaign against a dedicated and loyal U.S. intelligence community; and 4) Trump and his attorney hadn’t offered a plainly inadequate plan to deal with very real business conflicts that will taint his presidency. That’s not partisanship; those are just facts.

      You say “give the guy a chance.” To do what? You don’t know. And neither do most Americans.

      As I said, this isn’t a partisan issue — although that is the sound-bite that Team Trump uses to distract attention from the threats he pose to essential norms of our democracy. In fact, your willingness to “sign off” is exactly their goal: become so fatigued that even undisputed facts don’t matter.

      If I’ve developed any credibility with you over the years that I’ve written this blog, please indulge me in one final read of the post I’m preparing for next week.

      Best wishes and, hopefully, someday you’ll return.

      -SJH

  2. I read your last blog through billmoyers.com that a friend posted on FB. You wrote about norms and how Trump’s presidency will always be tainted, because of all that happened before Election Day and all the stuff that has come
    out about Putin since then. You put the nails in the coffin of “let’s give the guy a chance” remarks. Thank you!

    I am naive enough to wonder why the election cannot be considered “illegitimate” because of all that was revealed both before and after the election. I was so positive HRC would be elected until October 28th. I felt the bottom had fallen out and she no longer had a chance. I am glad the JD is finally looking into this Comey thing.

    It is all so unbearably ugly. So ugly. I am not the same person I was on November 8th. I and millions of others are devasted by this fiasco.

    I am a woman in my early sixties. Everything has fallen apart.

    But your blog gives me a bit of comfort.

  3. Steve,

    I am new to your blog, but have been impressed with your insight. After reading Ed Reda’s response above, I think he fails to take into account that your stated concerns are on a higher plane than partisan rancor seen when Obama was elected. As you stated about the circumstances: “They may have swung the election to Trump, too, but done is done. It’s not about re-litigating the last election. As United States attorney general, Sessions has to assure the integrity of the next one.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s