Attorney General Jeff Sessions on Thursday announced that he would recuse himself “from any existing or future investigations of any matters related in any way to the campaigns” for president in 2016.
Things came to a head after a Washington Post report revealed that Sessions had met with Russian Ambassador Sergey Kislyak during the campaign season — and subsequently denied meeting with Russians during Senate hearings for his attorney general nomination months later.
Outside of his recusal, Sessions has maintained that he did not lie to Congress. The White House has brushed off the matter altogether. But the report has congressional Democrats calling for Sessions’s resignation.
To speak to the legal precedence of Sessions’s testimony and Washington’s response to the report, I called up Richard Painter, who served as the chief ethics lawyer in President George W. Bush’s White House from 2005 to 2007, and is currently a law professor at the University of Minnesota. He is also on the board of Citizens for Responsible Ethics in Washington, which has taken a strong stance against President Donald Trump’s various conflicts of interest.
Painter argues that not only was there no wiggle room around Sessions’s recusal from any investigations into the Trump campaign’s alleged ties with Russia, but there is a case for Sessions to resign from the attorney general post altogether — and the White House isn’t helping the situation with its response to the whole thing.
Here is our full conversation, prior to Sessions’s recusal announcement, lightly edited for clarity.
How do you understand Attorney General Jeff Sessions’s Senate testimony and the reports that followed?
He said they had not had talks with Russians during the political campaign. And now he says, well, what he meant to say was that he had not had contact with the Russians to discuss the political campaign. But that’s not what he said.
And if he had contact with the Russians as a United States senator, as a member of the Armed Services Committee, he needed to disclose that and qualify that answer. Then of course he would have had to answer questions about what those conversations were. I will add that it is unusual for a member of the Senate Armed Services Committee to be conducting these types of unilateral discussions with the Russian ambassador. And I think we can rest assured that the Russians have very detailed notes of these conversations or tape recordings of them.
[Sessions] misled the Senate, and the Senate was entitled to find out about the communications with the Russians.
Would you say Jeff Sessions committed perjury, or is there some wiggle room?
This is one of those situations where the testimony was highly misleading. Whether or not it amounts to perjury is debatable. Of course, we had a situation with President Clinton 20 years ago where he was never prosecuted for perjury even though he gave a highly misleading testimony in a civil deposition.
The difference here, of course, is that this is a matter of extreme national importance — what the Russians are doing in the United States and who’s been contacting the Russians. Whereas the president’s personal sex life is not of importance at all to the American people. [But] there are still consequences of such actions, particularly when it comes to issues of national security.
It’s very rare for these kinds of perjury cases to move forward. What’s the precedent here?
Attorney General Alberto Gonzales, under the Bush administration, did resign from his post because some members of Congress felt his testimony was misleading — he was never prosecuted for anything. His testimony was never so misleading that he could be prosecuted even with a failure to provide information to Congress. [But] it was sufficiently dubious that he did end up resigning.
The attorney general of Richard Nixon, Richard Kleindienst, in 1972 in his own confirmation hearing was asked whether there had been discussions between himself and the White House about a pending antitrust case brought by DOJ against ITT [International Telephone and Telegraph], and Kleindienst said no. And then Leon Jaworski uncovered the Nixon tapes where the president told Kleindienst to drop the ITT case.
Kleindienst’s excuse there was that he thought the question in the Senate was about a different time frame than the one in which he communicated with the president — a quite pale excuse. But what ended up happening was that Jaworski prosecuted Kleindienst for crimes of failure to provide accurate information to Congress, which is a misdemeanor — which, of course, falls short of perjury, which is a felony.
Kleindienst was forced to resign as attorney general and was reprimanded by the Arizona bar. There is precedent for this type of testimony which [is] misleading, which may not be a blatant lie that amounts to perjury but is more in the debatable category.
The facts now in this investigation are much worse than the facts in the early stages of Watergate, which was a simple break-in ordered by midlevel campaign officials — not by the president. Here we have facts that are much worse: We have a foreign power that has orchestrated a break-in. It’s a much worse situation than the outset of Watergate.
What have you made of the White House’s response to this? You were the ethics lawyer under the Bush administration — are they following the guidance you would have given in this situation?
I don’t see much of a response. They are blowing it off. It’s very clear President Trump needs to immediately find out who in his campaign had any communications with the Russians about anything. Find out what those communications were to the best of his ability and find out who in the administration knew what the Russians were doing. He needs to support a thorough inquiry, not a cover-up — that is the mistake Nixon made with Watergate.
Their public comments have been atrocious so far. They keep accusing CNN of fake news; then the spokesperson for the Kremlin accuses CNN of fake news. What we are seeing is the White House putting themselves on the same page as the Kremlin, when they [the Russians] have been spying on the United States and attacked our democratic system in 2016. That is a terrible posture they are in. They need to do a complete reversal here.
Don’t cover it up. Get the people out that collaborated with the Russians, have a thorough investigation. If there is something that Putin has that is embarrassing to Donald Trump, just tell it to us. They certainly shouldn’t be repeating phrases like “fake news” that are being repeated by the Kremlin to attack the American media. That is exactly the wrong approach.
How much weight should be placed on partisanship here? That’s the argument the White House is making, after all — that this is a witch hunt.
I have been a Republican for decades, and the one thing that Republicans and Democrats should have in common is concern about our national security. And in particular the attempts by Russia over the decades — going back to the 1920s — to subvert our government by supporting extremist groups like the American Communist Party, or now white supremacist groups.
This is not a Democratic and Republican issue, and figuring out who in our government is cooperating with the Russians is of the utmost importance. We certainly don’t need a McCarthy-type witch hunt, and this shouldn’t be abused for political purposes, but it’s a critically important issue, and Democrats and Republicans can be united on this. And I certainly don’t think the Republican Party should become a pro-Putin party. If it is, we are going to have sort ourselves out.
With a recusal, are there still concerns with an independent review of the Trump campaign’s potential ties to Russia? If so, where?
At this point, he can’t have anything to do with the investigation. It needs to be an independent prosecutor, and cannot report to the attorney general and should not be someone who reports to someone who reports to the attorney general.
We absolutely need to find out what happened with the Russians, but this attorney general is not equipped to do that. He is conflicted out.
Do you think this could go further than recusal? Indictment?
That’s way down the road here. At this point, given the facts we have now, I don’t think [Sessions] could continue as attorney general. Certainly if he were indicted, he would be forced to step down as attorney general. You don’t need indictable conduct for an attorney general to step down.
This may very well fall into the category of what Bill Clinton did or Attorney General Kleindienst did — something falling short of perjury. We will deal with that when we get to it. At this point, [Sessions] provided misleading information to Congress, and we need to get to the bottom of it.