Regarding Jeff Sessions: A reply to Scott Johnson

Scott got a lot off his chest in his post called “Jeff Sessions: The Open Questions,” a critique of my post called “It’s John Bolton’s turn.” That’s good. However, it will take more than one post for me to respond.

This first post will focus on matters related to Jeff Sessions and what I take to be the demonizing of him.

Scott opens by saying that demonizing anyone other than demons would be wrong by definition. Not really.

The definition of demonize I had in mind is “to portray (someone or something) as evil or as worthy of contempt or blame.” If someone deserves contempt or blame to a significant degree, it is not wrong to demonize him.

President Trump has portrayed Jeff Sessions as worthy of contempt or blame. He has vilified the man. Sessions does not deserve this treatment.

The title of Scott’s post suggests as much. If there are “open questions” about Sessions, he should not be portrayed as worthy of contempt or major blame until the questions are answered satisfactorily.

What are Scott’s “open questions”? In his email to me about the post he critiques, Scott said that if Sessions couldn’t ethically perform his job in the Russia investigation, “he shouldn’t have taken the job or [should have] resigned.”

I hadn’t addressed this point in my post. To fill the gap, I addressed it here.

I showed that Sessions couldn’t have known in mid-November 2016, when he agreed to be attorney general, that his role would include overseeing an investigation into whether the Trump campaign colluded with Russia. I also discussed in some detail why, later on, it wouldn’t have made good sense for Sessions to withdraw from consideration or resign.

Scott doesn’t address these arguments except to say they are well informed, but speculative. It isn’t possible to consider the wisdom of a decision – in this case Sessions’s decision not to withdraw of resign – without considering what the likely consequences of making a different decision would have been. And such consideration necessarily involves a certain amount of speculation.

I take Scott’s characterization of my analysis as “well informed,” coupled with the fact that he doesn’t challenge any of it, as confirmation of the reasonableness my “speculation” — and of my conclusion that Sessions doesn’t deserve to be attacked for taking the Attorney General job and for not resigning.

This was the only criticism of Sessions that Scott leveled in his email to me. But now he levels an additional one. He doubts that Sessions needed to recuse himself from the Russia investigation. (To be clear, I don’t understand Scott to be demonizing Sessions for this decision.)

Sessions recused himself from the Russia investigation because that investigation centered on the Trump 2016 campaign, and Sessions was a central figure in the campaign. In addition, Sessions had met members of the Russian government a few times while the campaign was in progress.

I think Sessions made the right decision as a matter of legal ethics. No one should oversee the investigation of an enterprise he was intimately involved in, especially when it’s possible that his testimony will be sought in the investigation.

This, I take it, is why Attorney General William Barr says that Sessions probably made the right decision when he recused himself. One can disagree with Barr, of course. However, given the high regard in which Scott and I hold the current AG, it seems unfair to portray Sessions with contempt or blame for making a decision Barr says was probably right.

Barr’s view is supported by the fact that the legal ethics advisers at the Department of Justice counseled Sessions to recuse himself. In an email to Scott, Andy McCarthy said he “doesn’t doubt” that the advice came from “the same people who were signing off on the preposterous Carter Page FISA warrants.”

I don’t know who at the DOJ performed the legal analysis regarding the Sessions recusal matter, and from Andy’s careful phrasing it seems he doesn’t know either. I don’t assume that the legal analysis of the ethical issue was performed by someone who approved the Page FISA warrant.

In any case, I think the ethics advice was sound. If an Obama attorney general had worked on an Obama election campaign that was under investigation (whether or not the investigation was labeled “criminal”), and that attorney general remained in charge of the investigation, I’m pretty sure conservatives would have screamed bloody murder. And justifiably so.

Sessions was right not to put himself in that conflicted position. And those who, like the president, attacked him for it were wrong to do so, in my view.

Finally, Scott takes issue with my statement that Trump wanted Sessions to be his “consigliere.“ But Trump expected Sessions to protect him (and I assume wants Barr to do the same, seemingly a source of mounting frustration for Barr). That’s my understanding of what a consigliere does, albeit typically in relation to a mafia boss. (I hope readers understood that I was not accusing Trump of being a mafia boss.)

According to reports, Trump complained to Don McGahn, the White House counsel, that he needed his attorney general to protect him the way Robert Kennedy protected JFK and Eric Holder protected Obama. Trump asked McGahn, “Where’s my Roy Cohn?”

Bobby Kennedy and Cohn were consigliere-like, in my view. Holder described himself as Obama’s wingman. He didn’t fit the literal definition of a wingman, but the description was apt nonetheless. Trump’s view of his attorney general’s role doesn’t fit the literal definition of a consigliere, but I think the description is apt nonetheless.

Admittedly, my choice of words was harsh. But it was based on my view that Trump has (or at least had) a terribly misguided view of the attorney general’s proper role. That role is not to protect the president, it is to enforce federal law.

Trump’s view of the AG’s role as his protector, if it persists, risks making the Justice Department an instrument for the advancement of the president’s personal interests. It risks making our justice system about the rule of a man, not the rule of law.

Jeff Sessions had the correct view of the attorney general’s role. If anything, he should be praised, not demonized, for that.