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Jeff Sessions’s Grave Conflict of Interest

Alex Wong/Getty Images
Former Attorney General Jeff Sessions and Acting FBI Director Andrew McCabe during a news conference at the Justice Department, Washington, D.C., July 13, 2017

Last year, in March 2018, then Attorney General Jeff Sessions enlisted his subordinates to lie on his behalf that he did not know he was under federal investigation when he fired then Deputy FBI Director Andrew McCabe—an investigation initiated by McCabe and overseen by him until it was taken over by Special Counsel Robert Mueller.

By doing so, Sessions and his allies succeeded in shutting down a major controversy. If it had been made public that the attorney general had knowingly fired the deputy FBI director (and later, acting director) who’d opened and supervised that criminal investigation, the resulting scandal would have engulfed Sessions and would likely have even more seriously threatened his already tumultuous tenure as attorney general. Besides the scrutiny of the media and Congress, Sessions might have faced an inquiry by one of the Justice Department’s internal watchdog agencies, the Department’s Inspector General or Office of Professional Responsibility, as well as incurring the wrath of an already embittered president.

A government official with first-hand knowledge of the matter told me that the attorney general therefore instructed aides to make false statements in briefings to the press. The official’s account of what was at stake for Sessions is corroborated in part by a mass of evidence in the Mueller Report detailing the special counsel’s investigation of the former attorney general.

In addition to firing McCabe, Sessions, while under investigation, played a leading role in more broadly carrying out President Trump’s relentless campaign to undermine and discredit the FBI. Several leading experts on legal ethics have told me that Sessions’s simultaneous and dual roles almost certainly violated the American Bar Association’s Model Rules of Professional Conduct and federal government conflict of interest regulations. That demonstrates both the utility of Sessions’s misstatements, and the gravity of the situation he faced. 

In early 2017, Sessions had been investigated for perjury and lying to the Senate Judiciary Committee during his confirmation hearing to be attorney general about his contacts with a Russian diplomat during the 2016 presidential campaign. Sessions’s testimony was demonstrably misleading, but as the Mueller Report, released April 18, noted of its investigation of the matter: “evidence was insufficient to… obtain or sustain a conviction for perjury or false statements.”

Sessions had claimed that he had not known he’d been investigated for perjury until sometime during March 2018, the month he fired McCabe, when prosecutors had informed Sessions’s personal attorney that there was “insufficient” evidence to charge him. In fact, Sessions had been interviewed by prosecutors and FBI agents working for the special counsel some two months earlier, on January 17, 2018. Although Sessions was asked about a variety of subjects during that interview, there was a special emphasis on Sessions’s contacts with the former Russian ambassador, Sergey Kislyak, and Sessions’s subsequent Senate testimony.

During my reporting for this story, I spoke to more than half a dozen current and former federal law enforcement officials and criminal defense attorneys, with no direct involvement in the Mueller investigation. They told me that any skilled and experienced attorney would, in the case of an interview of such consequence, have asked the special counsel’s office beforehand whether their client was a “witness,” “subject,” or “target” of the investigation. Sessions’s attorney, Chuck Cooper, had been an assistant attorney general for the Office of Legal Counsel during the Reagan administration, and has over thirty-five years of legal experience. I could not learn if he asked the special counsel about Sessions’s status before he was interviewed, and if he did, what he was told. The special counsel declined to comment, and Cooper also refused to disclose this information or to comment on any other matter reported here.

A witness to a federal criminal investigation is a person not under investigation themselves, but who may have valuable information for the authorities. A “subject” of an investigation is someone under suspicion, but who the government wants to investigate further to see if there is evidence of a provable crime. The Justice Department defines a “target” as “a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

According to the government official familiar with the matter, whatever Cooper asked or might have been told, the interview itself left little doubt that the special counsel was scrutinizing this particular issue. “Even if they did not tell Sessions he was under investigation,” this person told me, “both [Sessions and Cooper] would have understood that to be the case based on the nature and sheer number of questions.” A former federal law enforcement official not involved in the case further explained to me: “A witness’s status in a case like this is a very fluid thing, anyway. They can be a witness when they come in, and a subject when they leave, or vice versa.”

Another former federal prosecutor explained to me why they considered it to be “implausible” that Sessions and Cooper did not understand that Sessions was under investigation when questioned: the special counsel’s investigation’s mission, they pointed out, was to determine the relationship between the president’s campaign advisers and the Russian government; Sessions was one such campaign adviser Russia targeted to influence. Two US Senators had asked the FBI to investigate Sessions for perjury. And in an order outlining the jurisdiction of the special counsel’s investigation, Rosenstein referenced “allegations that [Sessions] made false statements to the United States Senate.”

At issue were statements Sessions had made at his confirmation hearing, claiming that he’d had no contacts with Russian diplomats during the 2016 presidential election when he was advising Trump. Sessions, in fact, had twice met with Kislyak. It was after The Washington Post disclosed details of these meetings that Sessions recused himself from overseeing the DOJ and FBI investigations into Russian interference in the 2016 election. Sessions’s recusal led to Deputy Attorney General Rod Rosenstein’s taking over supervision of those investigations and appointing Robert Mueller as special counsel.

Sessions was questioned at length by the special counsel about his contacts with Kislyak, according to portions of the Mueller Report in both the body of the document and in its footnotes. The same government official familiar with the matter confirmed to me the focus and substance of the Mueller investigators’ interview with Sessions. In particular, Sessions was asked about a September 8, 2016, meeting that Sessions had had with Kislyak in Sessions’s Senate office. Two senior aides to Sessions were also questioned by the special counsel about this meeting, something Sessions almost certainly learned either directly from them or because their attorneys informed his attorney, Cooper, about it.

The Mueller Report further relates: “During the meeting, Kislyak invited Sessions to further discuss US–Russia relations with him over a meal at the ambassador’s residence.” Sessions’s legislative director told the special counsel that she’d advised Sessions against accepting the one-on-one meeting with Kislyak, whom she assessed to be an “old school KGB guy.” Additionally, Sessions was questioned at length to account for the portions of his Senate testimony that appeared to be demonstrably false.

There is little doubt that Sessions purposely misled the senators considering his confirmation. But the threshold to prosecute anyone for perjury is extraordinarily high—as it should be. To bring and sustain a case, a prosecutor must not only prove that the witness lied, but also that what they said was literally not true.

Sessions was asked, for example, during his confirmation hearing, if he knew whether “anyone affiliated with the Trump campaign communicated with the Russian government.” He replied that he was “not aware of any of those activities,” further noting, that he had “been called a surrogate at a time or two in that campaign.” Sessions had, in fact, met with Kislyak in his Senate office during the campaign. Sessions argued to the special counsel that his testimony was literally true, even if misleading, because he had met Kislyak in his capacity as a US senator, not as a representative of the Trump campaign. Mueller accepted this rationale.

Further evidence comes via the order authorizing the investigation of Sessions on October 20, 2017, from Deputy Attorney General Rod Rosenstein. Having first appointed Mueller as special counsel on May 17, 2017 “to investigate Russian interference with the 2016 presidential election and related matters,” the October order clarified that the special counsel’s jurisdiction included several other matters—one of which was to investigate “allegations that [Attorney General Jeff Sessions] made false statements to the United States Senate.”

*

Sessions fired McCabe early on the morning of March 16, 2018. The firing was controversial for a number of reasons: McCabe, as the FBI’s second-highest-ranking official under former FBI Director James Comey, was a witness in the special counsel’s investigation of whether the president had obstructed justice in firing Comey. Trump and his legal team—as well as Sessions—would have known that if Trump was charged with obstruction upon leaving office, McCabe would almost certainly be a crucial prosecution witness against the president, as well as a potential witness against the president in any impeachment proceedings.

In early 2018, at the president’s direction, according to a report by Axios, Sessions pressured FBI Director Christopher Wray to fire McCabe, a request that Wray considered so improper that he threatened to resign if Sessions’s demands continued. Some law enforcement officials believed that Trump’s attempts to have McCabe fired, using his own attorney general, might constitute a possible obstruction of justice by one or both men. McCabe’s termination appeared particularly vindictive—a little over twenty-four hours before he was due to retire from the FBI and become eligible for a full pension earned during a twenty-one-year career at the agency. President Trump had earlier taken a personal interest in the matter, browbeating McCabe on Twitter two days before Christmas: “FBI Deputy Director Andrew McCabe is racing the clock to retire with full benefits. 90 days to go?!!!” 

On March 14, 2018, however, the FBI’s Office of Professional Responsibility concluded that the deputy director had allegedly misled the agency’s investigators about having an “unauthorized” contact with reporters for the Wall Street Journal. Sessions now unexpectedly had the perfect pretext—indeed a legitimate reason—that he did not have before, to fire McCabe.

The government official with first-hand knowledge of this episode told me that among Sessions’s motives was his concern that he would appear to have a grave conflict of interest in firing an FBI official who had been leading an investigation of Sessions himself. Especially given his earlier recusal from overseeing the Russian investigation, Sessions would face a storm of questions about why he had not also recused himself in this matter. Sessions’s conduct in firing McCabe could also be construed as retaliating against the FBI official. Above all, though, Sessions’s action in firing McCabe might constitute an obstruction of justice.

Why, in this case, did Sessions do what Trump sought of him—and mislead Congress—risking his reputation and career, and further investigation? The answer is easy enough. The president was so enraged at Sessions’s initial recusal that shortly after Mueller’s appointment as the special counsel on May 17, 2017, Trump demanded Sessions’s resignation. Sessions accordingly submitted his letter of resignation. Only the intercession of the president’s top advisers, fearing a crisis that could threaten Trump’s presidency, prevented the president from following through.

But after agreeing not to fire Sessions, the president did not return the letter to him. According to the Mueller Report, then White House Chief of Staff Reince Priebus warned Sessions that the president was holding back on returning the letter as a sort of “shock collar” to have the “DOJ by the throat.” During a trip to the Middle East, aboard Air Force One, that same week, Trump pulled Sessions’s resignation letter from his pocket to show it to others, according to the Mueller Report. Only on May 30, almost two weeks later, did Trump finally return the letter to Sessions.

Two months later, on July 21, 2017, President Trump once again demanded that Sessions resign. In contemporaneous notes made by Priebus, the president told him he “need[ed] a letter of resignation on [his] desk immediately.” Priebus told the special counsel that he too feared that he would be fired if he failed to “carry out the President’s directive.” Although Mueller concluded that the president wanted to fire Sessions because he had recused himself from the Russia probe, Trump attempted to use the pretext of a newly discovered allegation of impropriety by Sessions as his public rationale for doing so.

Earlier that same day, The Washington Post had revealed that intercepted conversations between Kislyak and his superiors in Moscow indicated that he and Sessions had “discussed campaign-related matters, including policy issues important to Moscow,” contrary to Sessions’s public assertions otherwise. After he was told that firing Sessions would likely lead to mass resignations at the Justice Department, Trump backtracked. But the episode demonstrates that Trump was looking for any pretext to fire Sessions, particularly one regarding wrongdoing. It is reasonable to assume that if Trump had learned that Sessions was under criminal investigation for perjury, the president may have fired him. Sessions would not have wanted anyone—least of all the president of the United States—to know that he was under investigation for perjury, and that he was firing McCabe when he knew this to be the case.

Sessions, then, had to navigate the president’s constant pressure to impede the FBI’s and special counsel’s investigations, as well as attempts made by the president to have the Justice Department investigate his political adversaries. Sessions pushed back or quietly frustrated many of the president’s most outlandish and seemingly legally dubious demands—tempering some before implementing them, while at other times simply accommodating the president’s worst impulses.

The president’s efforts to impede the special counsel’s investigation, and even to fire Mueller, were inextricably linked with his campaign to have a new special counsel appointed to investigate the FBI and others Trump deemed his political adversaries. But it would have been a severe abuse of power, not seen since Watergate, for the Justice Department to begin a criminal investigation, let alone a special counsel’s inquiry, without any evidence or the necessary predicate required to do so.

In May 2018, four months after Sessions learned he was under investigation by the FBI, while berated by Trump over his refusal to appoint a special counsel to probe alleged FBI malfeasance, he and Rosenstein agreed to ask the Justice Department’s Inspector General to investigate instead. Sessions also agreed to have the US Attorney from Utah, John Huber, review whether the FBI had done anything wrong. If either the IG or Huber uncovered any  wrongdoing, a special counsel might then be named, Sessions and Rosenstein assured the president, while acknowledging privately, according to a senior law enforcement official I spoke to, that this was unlikely. This week, Attorney General William Barr assigned a third prosecutor, John Durham, the US Attorney for Connecticut, to examine the origins of the FBI’s Russia investigation.

Around this time, the Justice Department initially refused to turn over sensitive DOJ and FBI files to congressional Republicans about the Russia investigation, saying that their disclosure could “compromise ongoing investigations,” hamper ongoing intelligence operations, and lead to the “potential loss of human lives.” But after Trump pressured them to do so, Sessions and Rosenstein reversed the decision and turned over the records.

During the entire time that Sessions engaged in these various activities to undermine the FBI, most notably his firing of McCabe, Rosenstein knew that Sessions was under investigation for lying to Congress. Rosenstein appointed Mueller as special counsel in May 2017, who then took over the investigation of Sessions from the FBI. That October, Rosenstein wrote in an order that Mueller was to investigate Sessions for making false statements to Congress. It is entirely possible that Rosenstein did not then tell Sessions that he was under investigation: prosecutors often do not want those under investigation to know that they face legal jeopardy.  

In January 2018, however, the special counsel interviewed Sessions. Rosenstein was briefed about the interview by the special counsel, and likely was told about it by Sessions himself. According to a person close to Sessions, Rosenstein never once advised Sessions not to involve himself in the firing of McCabe, or in other matters related to the FBI and its Russia investigation.

I asked a senior federal law enforcement official who worked closely with Sessions at the time why Sessions did not recuse himself from oversight regarding investigations into the FBI. This person provided me with a brief explanation: “He wanted to keep his job.” The official added: “Sessions’s most valuable use to the president was controlling the Russia investigation. This is all that he had left.”

*

It was on March 21, 2018, five days after Sessions fired McCabe, that ABC News first disclosed that a year earlier McCabe “oversaw a federal criminal investigation into whether Sessions lacked candor when testifying before Congress.” In response to this news report, Sessions ordered an aide to deny that Sessions ever knew he was under investigation. This denial led ABC then to report: “One source told ABC News that Sessions was not aware of the investigation when he decided to fire McCabe.” (Notably, though, ABC pointed out, “an attorney representing Sessions declined to confirm that.”)

Representing Sessions, Chuck Cooper provided ABC and other news organizations with this statement:

The Special Counsel’s office has informed me that after interviewing the attorney general and conducting additional investigation, the attorney general is not under investigation for false statements or perjury in his confirmation hearing testimony and related written submissions to Congress.

That day or the next, many of the nation’s most influential news organizations quoted not only Cooper’s statement in full, but also Sessions’s own assertions that he did not know that he was under investigation for perjury or making false statements when he fired McCabe. Fox News, CNNThe New York Times, The Washington Post, USA Today, the New York Daily News, and others all repeated Sessions’s denial in virtually identical words, attributing them to either “a source close to” or “a person close to” Sessions himself.

Two of the nation’s most highly respected legal ethics experts say that the former attorney general’s actions likely violate federal conflict of interest regulations, as well as the legal profession’s formal ethical rules. Deborah Rhode, a law professor at Stanford University, told me that she believes that Sessions’s firing of McCabe, and more broadly his undermining of the FBI, while Sessions himself was under FBI investigation, may have violated the American Bar Association’s Model Rules of Professional Conduct in regards to conflict of interest. The American public, she says, deserves Attorneys General whose decisions are “competent” and “disinterested” and who do not “undermine the legitimate and independent” actions of federal law enforcement for reasons of self-interest. Kathleen Clark, a law professor at Washington University in St. Louis, Missouri, told me that Sessions’s actions might be contrary to federal government ethics rules that a government employee should not involve themselves in any matter if the circumstances would cause a reasonable person “to question his impartiality in the matter.”

Explaining his firing of Andrew McCabe, Sessions directed his aides to issue a statement in his name, saying: “The FBI expects every employee to adhere to the highest standards of honesty, integrity, and accountability.”