Attorney General Sessions Recuses From the Russia Investigation

Attorney General Sessions Recuses From the Russia Investigation

¶In late February 2017, the Department of Justice began an internal analysis of whether Sessions should recuse from the Russia investigation based on his role in the 2016 Trump Campaign.²⁷³²⁷³ Sessions 1/17/18 302, at 1; Hunt 2/1/18 302, at 3. On March 1, 2017, the press reported that, in his January confirmation hearing to become Attorney General, Senator Sessions had not disclosed two meetings he had with Russian Ambassador Kislyak before the presidential election, leading to congressional calls for Sessions to recuse or for a special counsel to investigate Russia's interference in the presidential election.²⁷⁴²⁷⁴ E.g., Adam Entous et al., Sessions met with Russian envoy twice last year, encounters he later did not disclose, Washington Post (Mar. 1, 2017).

¶Also on March 1, the President called Comey and said he wanted to check in and see how Comey was doing.²⁷⁵²⁷⁵ 3/1/17 Email, Comey to Rybicki; SCR012b_000030 (President's Daily Diary, 3/1/17, reflecting call with Comey at 11:55 am.) According to an email Comey sent to his chief of staff after the call, the President "talked about Sessions a bit," said that he had heard Comey was "doing great," and said that he hoped Comey would come by to say hello when he was at the White House.²⁷⁶²⁷⁶ 3/1/17 Email, Comey to Rybicki; see Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (CQ Cong. Transcripts, at 86) (testimony of James B. Comey, former Director of the FBI) ("[H]e called me one day. . . . [H]e just called to check in and tell me I was doing an awesome job, and wanted to see how I was doing."). Comey interpreted the call as an effort by the President to "pull [him] in," but he did not perceive the call as an attempt by the President to find out what Comey was doing with the Flynn investigation.²⁷⁷²⁷⁷ Comey 11/15/17 302, at 17-18.

¶The next morning, the President called McGahn and urged him to contact Sessions to tell him not to recuse himself from the Russia investigation.²⁷⁸²⁷⁸ McGahn 11/30/17 302, at 16. McGahn understood the President to be concerned that a recusal would make Sessions look guilty for omitting details in his confirmation hearing; leave the President unprotected from an investigation that could hobble the presidency and derail his policy objectives; and detract from favorable press coverage of a Presidential Address to Congress the President had delivered earlier in the week.²⁷⁹²⁷⁹ McGahn 11/30/17 302, at 16-17; see SC_AD_00123 (Donaldson 3/2/17 Notes) ("Just in the middle of another Russia Fiasco."). McGahn reached out to Sessions and reported that the President was not happy about the possibility of recusal.²⁸⁰²⁸⁰ Sessions 1/17/18 302, at 3. Sessions replied that he intended to follow the rules on recusal.²⁸¹²⁸¹ McGahn 11/30/17 302, at 17. McGahn reported back to the President about the call with Sessions, and the President reiterated that he did not want Sessions to recuse.²⁸²²⁸² McGahn 11/30/17 302, at 17. Throughout the day, McGahn continued trying on behalf of the President to avert Sessions's recusal by speaking to Sessions's personal counsel, Sessions's chief of staff, and Senate Majority Leader Mitch McConnell, and by contacting Sessions himself two more times.²⁸³²⁸³ McGahn 11/30/17 302, at 18-19; Sessions 1/17/18 302, at 3; Hunt 2/1/18 302, at 4; Donaldson 11/6/17 302, at 8-10; see Hunt-000017; SC_AD_00121 (Donaldson 3/2/17 Notes). Sessions recalled that other White House advisors also called him that day to argue against his recusal.²⁸⁴²⁸⁴ Sessions 1/17/18 302, at 3.

¶That afternoon, Sessions announced his decision to recuse "from any existing or future investigations of any matters related in any way to the campaigns for President of the United States."²⁸⁵²⁸⁵ Attorney General Sessions Statement on Recusal, Department of Justice Press Release (Mar. 2, 2017) ("During the course of the last several weeks, I have met with the relevant senior career Department officials to discuss whether I should recuse myself from any matters arising from the campaigns for President of the United States. Having concluded those meetings today, I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States."). At the time of Sessions's recusal, Dana Boente, then the Acting Deputy Attorney General and U.S. Attorney for the Eastern District of Virginia, became the Acting Attorney General for campaign-related matters pursuant to an executive order specifying the order of succession at the Department of Justice. Id. ("Consistent with the succession order for the Department of Justice, . . . Dana Boente shall act as and perform the functions of the Attorney General with respect to any matters from which I have recused myself to the extent they exist."); see Exec. Order No. 13775, 82 Fed. Reg. 10697 (Feb. 14, 2017).Show full note Sessions believed the decision to recuse was not a close call, given the applicable language in the Code of Federal Regulations (CFR), which Sessions considered to be clear and decisive.²⁸⁶²⁸⁶ Sessions 1/17/18 302, at 1-2. 28 C.F.R. § 45.2 provides that "no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with . . . [a]ny person or organization substantially involved in the conduct that is the subject of the investigation or prosecution," and defines "political relationship" as "a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof."Show full note Sessions thought that any argument that the CFR did not apply to him was "very thin."²⁸⁷²⁸⁷ Sessions 1/17/18 302, at 2. Sessions got the impression, based on calls he received from White House officials, that the President was very upset with him and did not think he had done his duty as Attorney General.²⁸⁸²⁸⁸ Sessions 1/17/18 302, at 3.

¶Shortly after Sessions announced his recusal, the White House Counsel's Office directed that Sessions should not be contacted about the matter.²⁸⁹²⁸⁹ Donaldson 11/6/17 302, at 11; SC_AD_00123 (Donaldson 3/2/17 Notes). It is not clear whether the President was aware of the White House Counsel's Office direction not to contact Sessions about his recusal. Internal White House Counsel's Office notes from March 2, 2017, state "No contact w/Sessions" and "No comms / Serious concerns about obstruction."²⁹⁰²⁹⁰ SC_AD_00123 (Donaldson 3/2/17 Notes). McGahn said he believed the note "No comms / Serious concerns about obstruction" may have referred to concerns McGahn had about the press team saying "crazy things" and trying to spin Sessions's recusal in a way that would raise concerns about obstruction. McGahn 11/30/17 302, at 19. Donaldson recalled that "No comms" referred to the order that no one should contact Sessions. Donaldson 11/6/17 302, at 11.Show full note

¶On March 3, the day after Sessions's recusal, McGahn was called into the Oval Office.²⁹¹²⁹¹ McGahn 12/12/17 302, at 2. Other advisors were there, including Priebus and Bannon.²⁹²²⁹² McGahn 12/12/17 302, at 2. The President opened the conversation by saying, "I don't have a lawyer."²⁹³²⁹³ McGahn 12/12/17 302, at 2. The President expressed anger at McGahn about the recusal and brought up Roy Cohn, stating that he wished Cohn was his attorney.²⁹⁴²⁹⁴ McGahn 12/12/17 302, at 2. Cohn had previously served as a lawyer for the President during his career as a private businessman. Priebus recalled that when the President talked about Cohn, he said Cohn would win cases for him that had no chance, and that Cohn had done incredible things for him. Priebus 4/3/18 302, at 5. Bannon recalled the President describing Cohn as a winner and a fixer, someone who got things done. Bannon 2/14/18 302, at 6.Show full note McGahn interpreted this comment as directed at him, suggesting that Cohn would fight for the President whereas McGahn would not.²⁹⁵²⁹⁵ McGahn 12/12/17 302, at 2. The President wanted McGahn to talk to Sessions about the recusal, but McGahn told the President that DOJ ethics officials had weighed in on Sessions's decision to recuse.²⁹⁶²⁹⁶ McGahn 12/12/17 302, at 2. The President then brought up former Attorneys General Robert Kennedy and Eric Holder and said that they had protected their presidents.²⁹⁷²⁹⁷ McGahn 12/12/17 302, at 3. Bannon said the President saw Robert Kennedy and Eric Holder as Attorneys General who protected the presidents they served. The President thought Holder always stood up for President Obama and even took a contempt charge for him, and Robert Kennedy always had his brother's back. Bannon 2/14/18 302, at 5. Priebus recalled that the President said he had been told his entire life he needed to have a great lawyer, a "bulldog," and added that Holder had been willing to take a contempt-of-Congress charge for President Obama. Priebus 4/3/18 302, at 5.Show full note The President also pushed back on the DOJ contacts policy, and said words to the effect of, "You're telling me that Bobby and Jack didn't talk about investigations? Or Obama didn't tell Eric Holder who to investigate?"²⁹⁸²⁹⁸ McGahn 12/12/17 302, at 3. Bannon recalled that the President was as mad as Bannon had ever seen him and that he screamed at McGahn about how weak Sessions was.²⁹⁹²⁹⁹ Bannon 2/14/18 302, at 5. Bannon recalled telling the President that Sessions's recusal was not a surprise and that before the inauguration they had discussed that Sessions would have to recuse from campaign-related investigations because of his work on the Trump Campaign.³⁰⁰³⁰⁰ Bannon 2/14/18 302, at 5.

¶That weekend, Sessions and McGahn flew to Mar-a-Lago to meet with the President.³⁰¹³⁰¹ Sessions 1/17/18 302, at 3; Hunt 2/1/18 302, at 5; McGahn 12/12/17 302, at 3. Sessions recalled that the President pulled him aside to speak to him alone and suggested that Sessions should "unrecuse" from the Russia investigation.³⁰²³⁰² Sessions 1/17/18 302, at 3-4. The President contrasted Sessions with Attorneys General Holder and Kennedy, who had developed a strategy to help their presidents where Sessions had not.³⁰³³⁰³ Sessions 1/17/18 302, at 3-4 Sessions said he had the impression that the President feared that the investigation could spin out of control and disrupt his ability to govern, which Sessions could have helped avert if he were still overseeing it.³⁰⁴³⁰⁴ Sessions 1/17/18 302, at 3-4. Hicks recalled that after Sessions recused, the President was angry and scolded Sessions in her presence, but she could not remember exactly when that conversation occurred. Hicks 12/8/17 302, at 13.

¶On March 5, 2017, the White House Counsel's Office was informed that the FBI was asking for transition-period records relating to Flynn—indicating that the FBI was still actively investigating him.³⁰⁵³⁰⁵ SC_AD_000137 (Donaldson 3/5/17 Notes); see Donaldson 11/6/17 302, at 13. On March 6, the President told advisors he wanted to call the Acting Attorney General to find out whether the White House or the President was being investigated, although it is not clear whether the President knew at that time of the FBI's recent request concerning Flynn.³⁰⁶³⁰⁶ Donaldson 11/6/17 302, at 14; see SC_AD_000168 (Donaldson 3/6/17 Notes) ("POTUS wants to call Dana [then the Acting Attorney General for campaign-related investigations] / Is investigation / No / We know something on Flynn / GSA got contacted by FBI / There's something hot").