Should Jeff Sessions have agreed to be Attorney General?

In a post I wrote last week about what I view as the demonization of John Bolton, I said that Bolton has plenty of company under the Trump bus. As an example, I cited Jeff Sessions, a conservative hero of longstanding who fell out of favor after he recused himself, for ethical reasons, from the Justice Department’s Russia investigation and his deputy appointed Robert Mueller to investigate on the DOJ’s behalf.

I did not address the argument that if Sessions couldn’t ethically oversee the investigation of Russian involvement in the 2016 election, he shouldn’t have taken the job or should have resigned. I will address it now.

The argument does not hold up when one considers the timeline of events. President Trump nominated Jeff Sessions for Attorney General on November 19, 2016. At that time, I don’t think Sessions had reason to believe that his duties as AG would involve overseeing an investigation of Russian interference in the election. He certainly had no reason to believe that any such investigation would target Trump.

None of the key events that led to that investigation had taken place as of November 19, 2016. The Steele dossier wasn’t put into public circulation or called to Trump’s attention until January 2017. Trump hadn’t foolishly decided that James Comey would remain as FBI director until later that month.

The FBI did not entrap Michael Flynn until late January, and allegations that Flynn lied to the FBI did not surface until early February. The conversation in which Comey claims that Trump requested leniency for Flynn didn’t until occur until later in February.

Comey wasn’t fired until May 9, 2017. The Comey firing, and Comey’s plotting, led to the appointment of Robert Mueller eight days later.

Rod Rosenstein, the Deputy Attorney General, decided to name a special counsel and selected Mueller for the job. My sources say the White House picked Rosenstein to be Session’s DAG. Sessions did not select him.

Rosenstein was nominated on February 1, 2017, the same day the Senate confirmed Sessions. Sessions recused himself from any Justice Department investigation of the 2016 election on March 2, 2017.

Given this timeline, Sessions cannot fairly be criticized for agreeing in November 2016 to be the Attorney General. At that time, he couldn’t have anticipated that there would be a Justice Department investigation of alleged collusion by Trump with Russia.

What about the argument that Sessions should have resigned once the prospect of such an investigation became apparent? Suppose he had. In all likelihood, Rod Rosenstein would then have been in charge not just of the Russia investigation, but of the entire Justice Department.

There’s no reason to suppose that Trump would have replaced Sessions with anyone other than Rosenstein or that the Senate would have confirmed someone other than Rosenstein expeditiously and without extracting concessions regarding the handling of the Russia investigation (as it has done during subsequent confirmation hearings for other key DOJ jobs). Rosenstein wasn’t confirmed until the end of April.

The fact that Trump didn’t fire Sessions after the recusal speaks to the futility and likely negative repercussions for the president of replacing the AG by this point. A Sessions resignation would have been futile in the same way and would have carried similar, though less severe, repercussions.

Sessions could have withdrawn from consideration in January, before he was confirmed. But the result of such a withdrawal would have been similar to the result of a resignation or a firing thereafter.

Sessions’s rocky confirmation hearings occurred on January 10 and 11, just as the Steele dossier was coming into prominence. The consequences of a Sessions withdrawal at that point would have included (1) a victory for Al Franken, who has leading the anti-Sessions charge, (2) a setback for Trump before he was even inaugurated, and most importantly (3) surface credibility for Democrats’ charge of Russia-related wrongdoing in the Trump campaign.

Furthermore, Sessions had no reason to believe in January that his resignation was necessary to protect Trump from a special counsel investigation. The events that led to the appointment of Mueller — most notably the deterioration of relations between Trump and Comey and the subsequent firing of the latter — occurred after January.

Sessions understood by January that the Trump Justice Department would be investigating the 2016 election, including charges of collusion. However, he had no reason to assume that an internal DOJ investigation of these baseless charges would be problematic or that Trump’s appointee as Deputy Attorney General wouldn’t ensure that the investigation was fair. Still today, there’s no reason to make either assumption.

The appointment of a special counsel, and Mueller in particular, was the cause of the administration’s woes. Blame for that appointment lies with Rod Rosenstein, who made the decision, and James Comey, who manipulated matters to induce Rosenstein to make it.

Blame for the appointment of Rosenstein and the retention of Comey rests with President Trump. Jeff Sessions is Trump’s scapegoat.

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