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Sessions employs a novel tactic in Senate hearing, thereby ducking many questions

Attorney General Jeff Sessions did a pretty good job for his boss yesterday, or at least it’s hard to see that he made anything worse for the president.

U.S. Attorney General Jeff Sessions reacting angrily to questions from Sen. Ron Wyden as he's testifying before a Senate Intelligence Committee hearing on Tuesday.
REUTERS/Jonathan Ernst

If you’re piloting an airplane held together by baling wire and chewing gum, and you have no actual training at piloting an airplane, any day that you don’t lose a wing or a propeller must feel like a good day.

Against that standard, maybe Tuesday was a good day for President Trump.

His still-acting-loyal (despite rumors that Trump is ready to dump him) Attorney General Jeff Sessions did a pretty good job for his boss yesterday, or at least it’s hard to see that he made anything worse for the president.

In testimony before the Senate Intelligence Committee, Sessions made relatively few damaging admissions, in part by declining to answer certain perfectly fair and relevant questions. He avoided many of those questions by invoking a relatively new way of ducking questions, namely: Instead of literally invoking “executive privilege” (the right of a president to have confidential conversations with members of the executive branch), Sessions relied on the relatively novel theory that he couldn’t invoke executive privilege – only the president can do that, and President Donald Trump has not done so.

Not invoking executive privilege, but …

So Sessions claimed he couldn’t respond to various questions about his conversations with Trump because, although neither he nor Trump was invoking executive privilege, the president might subsequently wish to invoke executive privilege to prevent him from answering. And, if Sessions had already answered, it would be too late.

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Did you follow that? You might want to read that previous paragraph again slowly, because I can’t figure out a cleaner explanation.

I don’t know how novel this dodge was. CNN legal analyst Jeffrey Toobin seemed to think it was a new one. But it managed to get Sessions past many questions, the answers to which might have been embarrassing, without putting the blame on the president for actually invoking the privilege and therefore looking like he was hiding something. Slick or too slick? You decide.

Sen. Martin Heinrichs, D-New Mexico, thought it was too slick, and accused Sessions of both “obstructing” and “impeding” the congressional investigation by his refusal to answer so many questions.

Rep. Schiff’s view

There is, by the way, a possible work-around for the Catch-22 that Sessions’ tactic presented, which was suggested later in the day on TV by Rep. Adam Schiff. If the committee really wants to know about one of Sessions’ conversations with Trump, they should submit the question in writing and insist that Sessions either get Trump’s permission to testify about it, or get him to actually assert executive privilege (and bear whatever blame goes with that).

Sessions did, in his angriest moment, invoke a sort-of personal privilege. Sen. Ron Wyden, D-Oregon, pointed out that fired FBI Director James Comey, in his previous testimony to the same committee, had suggested that Sessions had certain matters that he, Comey, knew about but couldn’t discuss in a public setting, but which cast some shadow over Sessions’ relationship to the Russia inquiry. What problem was that, Wyden asked Sessions?

Sessions, in high dudgeon, demanded:

Why don’t you tell me. There are none, Sen. Wyden. there are none. I can tell you that for absolute certainty. This is a secret innuendo being leaked out there about me and I don’t appreciate it. I’ve tried to give my best and truthful answers to any committee I’ve appeared before.

Without having any clear idea what Comey might have been referencing, and without assuming either way whether Sessions was hiding something to which Comey was alluding, I guess I have some sympathy for Sessions taking offense at Wyden’s question. And “secret innuendo” has a certain flair. Maybe someday we’ll find out what Comey meant and whether Sessions is so innocent.

Reed’s questioning and Sessions’ worst moment

Sessions’ worst moment, in my view, occurred late in the hearing under questioning by Sen. Jack Reed, D-Rhode Island. Reed asked Sessions about the argument Deputy Attorney General Rod Rosenstein had made in his now famous memo offering Trump reasons to fire Comey. Rosenstein relied on Comey’s infamous handling of his investigation of Hillary Clinton’s emails, and his decision late in the campaign to announce that he was reopening the investigation. (As you probably know, Clinton and many of her supporters blame Comey’s remarks for costing her the election.)

Sessions interjected that Comey had indeed botched that, and he agreed with Rosenstein that this was a good reason for Trump to have fired Comey.

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But Reed reminded Sessions that, at the time Comey announced his reopening of the case, Sessions publicly praised Comey for exactly the conduct that he now says justified Trump’s decision to fire Comey.

Uh-oh. Here’s how that came down during the hearing:

Sen. Reed: “Excuse me, sir, on July 7th when Mr. Comey made his first announcement about the [Clinton e-mail] case, you were on Fox News, and you said, first of all, director Comey is a skilled former prosecutor and then you concluded by saying essentially that it’s not his problem. It’s Hillary Clinton’s problem.

Then in November, on November 6th, after Mr. Comey again made news in late October by reopening the investigation, you said, again, on Fox News: FBI Director Comey did the right thing when he found new evidence. He had no choice but to report it to the American Congress where he had under oath testified the investigation was over. He had to correct that and say this investigation was ongoing now. I’m sure it’s significant, or else he wouldn’t have announced that.

So in July and November Director Comey was doing exactly the right thing. You had no criticism of him. You felt that in fact he was a skilled professional prosecutor. You felt that his last statement in October was fully justified, so how can you go from those statements to agreeing with Mr. Rosenstein and then asking the president or recommending that he be fired?”

Sen. Sessions: “I think in retrospect, as all of us began to look at that clearly and talk about it as perspectives of the Department of Justice, once the director first got involved and embroiled in a public discussion of this investigation, which would have been better never to have been discussed publicly, and said it was over. Then when he found new evidence that came up, I think he probably was required to tell Congress that it wasn’t over, that new evidence had been developed. It probably would have been better and would have been consistent with the rules of the Department of Justice to never have talked about the investigation to begin with. Once you get down that road, that’s the kind of thing that you get into that went against classical prosecuting policies that I learned and was taught when I was United States attorney and assistant United States attorney.”

REED: “If I may ask another question. Your whole premise in recommending to the president [that he fire Comey] was the actions in October involving Secretary of State Clinton, the whole Clinton controversy. Did you feel misled when the president announced that his real reason for dismissing Mr. Comey was the Russia investigation?”

SESSIONS: “I don’t have — I’m not able to characterize that fact. I wouldn’t try to comment on that.”

This is a really great gotcha by Reed, which exposes Sessions as a political changeling whose principles shift to fit the political needs of the moment.

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Hannity’s take

Lastly, as I did the other night as a brake on my own anti-Trump sentiments, I offer the words of Sean Hannity as he opened last night’s fulmination on Fox: 

The attorney general, Jeff Sessions, obliterates the left and their black-helicopter tin-foil-hat Russia collusion conspiracy theories and slams the Democrats for spreading detestable lies during his very, very powerful Senate testimony earlier today. …

Jeff Sessions’ testimony today a huge win for President Trump and his administration as they continue to fight back against the unprecedented attacks against them. And that is tonight’s very important monologue.