Comey and Friends Expected Jeff Sessions to Recuse by February 14

Here’s another detail from Jim Comey’s testimony that deserves more attention. On February 14, the day that President Trump asked Comey to drop the investigation into Mike Flynn, Comey and his aides expected Jeff Sessions to recuse himself from the investigation.

We also concluded that, given that it was a one-on-one conversation, there was nothing available to corroborate my account. We concluded it made little sense to report it to Attorney General Sessions, who we expected would likely recuse himself from involvement in Russia-related investigations. (He did so two weeks later.) [my emphasis]

Obviously, Sessions should have recused in any case, since he was involved in the campaign. But Comey specifically framed this as “Russia-related investigations,” not Trump investigations generally. Comey doesn’t say why the top people at FBI believed he would recuse, but by this point, the FBI would have pulled all intercepts involving Sergey Kislyak, so would have discovered ones reflecting conversations with Sessions.

In any case, to have that belief, the FBI presumably had already talked to Sessions about his conflicts with the Russian investigation.

That’s consistent with something Sessions said in his recusal statement. He describes the recusal process as a several week series of meetings.

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.

Yet it took two more weeks (actually, 16 days) for Sessions to recuse, which suggests he didn’t do it just for the election-related reasons, and didn’t do it when FBI first talked to him about it. He only did it once the leaks about his ties to Kislyak came out.

Given Trump’s reported continued rage at Sessions for recusing — so much so he’s considering firing him (do it!!!) — I find that very significant. It makes it more likely that Sessions and Trump spoke about a potential recusal in the interim weeks, and more likely that Trump thought he had a plan in place to kill any investigation that Sessions recusal killed.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

32 replies
  1. scribe says:

    IMHO, Comey and friends concluding that Sessions would have to recuse came about through years of experience on their part, much the way lawyers analyzing a case will come to an immediate (or near-immediate) conclusion that the case will play out a certain way.
    “I thought I had to write it down (meeting one at Trump Tower) because I thought he would lie about the substance of the meeting we’d just had.”
    Ouch.
    “I knew there might come a day I would need to defend the FBI’s integrity, … the circumstances and the particular person”.

    • Ed Walker says:

       

      I agree on the recusal point. And I’d bet that Comey was still in the Trump Tower meeting when he decided to write that memo. You know when you need that document.

  2. earlofhuntingdon says:

    Nice emphasis.  Sessions didn’t do it because it was the right or professional thing to do, or simply because the law or government ethical obligations required it.  Sessions “recused” himself, to the extent that he has, to protect himself or the president from after-the-fact embarrassment.

    Presumably, Trump would have made clear his expectations that Sessions, too, would put loyalty above his constitutional obligations and his oath of office, that he would protect Trump from whatever came his way.  Indeed, Trump would have expected Sessions to keep anything coming his way.

    I don’t think that behavior is unusual in a CEO, however questionable the expectation.  In the context of the USG and the laws governing it, in the context of the presidency and the DoJ, Trump and Sessions’s behavior is inexcusable.

    I’ll chime in on Comey’s interpretation that Trump was ordering him to quash the investigation, on pain of losing his job, notwithstanding that Trump, not a complete idiot, used circumstances he arranged rather than specific words to make his point clear. (Trump doesn’t know words, but he does know intimidation. It’s what he does.)  The same would have been true in any awkward, one-on-one conversation with any leader and subordinate, let alone the president talking with the director of the FBI.

    Trump intentionally skirted the chain of command.  He publicly isolated Comey in order to intimidate him, to put his job on the line.  He repeatedly talked about loyalty as his most important expectation.  Moreover, Trump expected Comey to perform a political act, to lift the “cloud” Trump envisioned as blocking the president’s ability to do his job.  Not Comey’s job or within his ability; indeed, it is a direct conflict with Comey’s job.  If Comey’s version is true, it’s a textbook example of obstruction.

  3. lefty665 says:

    Jeez, McCain just wandered in and was incoherent. Among other things he confused Comey and Trump’s names on a couple of occasions.

    • Charles says:

      More important, he tried to link Trump and Clinton investigations, and to ask why Clinton investigation not still ongoing.  I expect him to say “She’s a witch, I tell you!  A witch!

       

      As Marcy said on Twitter, most douchebaggy question of the hearing.  Also, twin competency hearings for McCain and Trump. I would add, for America, for putting all these idiots (and I include Comey in that characterization) in charge.

      • lefty665 says:

        She’s a witch, I tell you!  A witch!” One more thing for Mueller to investigate.  He is after all on a witch hunt.

        I thought at first McCain was going after Lynch’s demand that Comey refer to the Clinton criminal investigation as a “matter”. That is a more material infraction than Trump expressing his “hope” to Comey about Flynn, that Comey dealt with appropriately.  But McCain wasn’t, and he went on at painful length to demonstrate his confusion. Time for McCain to retire, long past actually.  Collins was almost as bad yesterday.

        McCain is a reminder of the perils of electing us boomer geezers president. We’re not six months past what would have been the end of McCain’s second term. I’m too old to be President, so are McCain, Sanders, Clinton, Trump and Warren. Time for a new generation, but Harris was not terribly impressive in her segment. She was however far better than McCain or my own Mark “radical centrist” Warner. God forbid that this will reignite his presidential ambitions.

         

        • Charles says:

          I thought at first McCain was going after Lynch’s demand that Comey refer to the Clinton criminal investigation as a “matter”. That is a more material infraction than Trump expressing his “hope” to Comey about Flynn…

           

          Pardon me, but that is manure.  As Comey responded, Trump’s comment reminded him of Richard III and Thomas Becket. Everyone knows what the boss means by “I hope that…”   Richard Nixon was accused of obstruction of justice for less.

           

          Furthemore, everyone knew that there was no substance to Clinton’s handling of e-mail. Other people (Colin Powell, Condoleeza Rice, and Karl Rove, to name a few) had used insecure electronics before her. Hell, Trump is bringing an unsecured phone into areas where he is discussing sensitive, perhaps even classified information! It’s a wonder some bored script kiddie hasn’t posted his conversations with Prime Minister Abe.

          Sure, given Congressional susurrations, the FBI had to make a show of looking at the Clinton e-mails. But it was always a bad joke, something that all the players understood was political. It was something that Democrats resented as an abuse of law enforcement for political purposes. Lynch’s directive was ineffectual PR. No laws or rules were broken.

          • lefty665 says:

            What’s the weather like on the planet where you live?  It is clearly far far away from D.C.

            Well NO, “everyone” did not know “that there was no substance to Clinton’s handling of e-mail”. In fact there was material substance.  Read section 793 paragraph (f) of the espionage law. Last July Comey clearly laid out Clinton’s felony violations under that section of the law, guess that news did not reach your planet.  Laws and rules were broken. Comey absolved Hillary et al because he found no intent to do wrong, not because there was no wrongdoing. Section 793(f) excludes intent as a requirement for criminality. Mishandling of classified material by itself is the crime. If there is intent to help another country that makes it espionage.

            The nation’s rejection of Clinton for president was based in large part on her lack of character, and long history as a liar.  Or as she put it to Goldman-Sachs when we finally got leaks of those speeches she tried to hide: “I have two positions on everything, public and private”. Her continued lies and misleading statements about the E-mail formed a material part of voters mistrust. You won’t find that in Hillary’s ever lengthening list of other people who cost her the election, including the DNC.  The truth is she did it the old fashioned way, she lost it herself. She made herself a less attractive candidate for president than Donald F***ing Trump, and he’s butt ugly.

            Comey’s unilateral usurpation of the DOJ’s authority to decide whether to prosecute was cause to fire him last July. That was not his decision as the investigator to make. However, Lynch was tickled Comey got her off the hook, and Obama was too as he flew off with Hillary to campaign in Carolina.  Now that’s an abuse of the law for political purposes.

            Dems need to get over their tantrums and hysteria about Hillary.  The country needs a viable opposition party and the Dems are pissing away their opportunity to lead. But Charles, as the resident of another planet that does not matter to you. Hope the weather stays nice way out there. It looks like warm and getting warmer here.

  4. Nell says:

    :: plan in place to kill any investigation that Sessions recusal killed. ::

    Do you mean ‘to kill any investigation that required Sessions recusal’?

  5. earlofhuntingdon says:

    Comey did a credible job.  I think he slipped up, for example, in response to Cornyn’s questions about the consequences of Comey’s firing on any investigation.  Comey said there were none and lauded Mueller once again.

    Comey, however, could have mentioned the numerous opportunity costs the president created by firing Comey: today’s hearing and the resources consumed in arranging it, the delays and obfuscation, the dysfunction in the FBI and its still leaderless staff, the need to appoint a new head to the FBI and the special counsel, and time and costs involved, and so on.  Other than that, Mrs. Lincoln, how did you like the play?

    • Charles says:

      I think Comey did a serious disservice by dismissing media accounts. If it weren’t for the media, we’d know f-all about what the Russians did.  They have to dig information out of the government. Sometimes they get it wrong.

       

      Specifically, Comey attacked this story, whose lede is that:

       

      Phone records and intercepted calls show that members of Donald J. Trump’s 2016 presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election, according to four current and former American officials.

      This then is followed by these claims

      The officials said the intercepted communications were not limited to Trump campaign officials, and included other associates of Mr. Trump.

      The officials said that one of the advisers picked up on the calls was Paul Manafort…

      That’s pretty much it. And I suspect that all of that is correct, although some of it may be an attempt to launder sources (e.g., if Sessions openly meets with the Russian ambassador, and then the Russians call home to talk about it, then it’s not false to say that phone records show that Sessions talked with the Russians. It’s misleading, but technically true).

      And when Comey started talking about how the Intelligence Committee was an example to the kids, I needed to look for a barf basin. These people, top to bottom, are abject failures at their jobs. If they weren’t, it wouldn’t have taken until July to get serious about looking at Russian interference in the election, and the Clinton e-mail investigation would have been wrapped up long, long ago.

  6. Avattoir says:

    It makes me mildly nauseous to think about Comey.

    Trump makes me vomit. But the idea that the country’s fingernail grip on Rule of Law & representative democracy depend on the outcome of a tussle of wills between the grouper in chief and this sanctimonious dullard desk warrior provides inadequate relief.
    I feel LESS confident in Mueller after hearing Comey’s repeated efforts at deifying him.
    Self-governance shouldn’t be this vulnerable to narcissists.

  7. scribe says:

    The Thomas a Becket reference was by Angus King, not John McCain. For all his pompous ass-ishness, King was coherent and intelligent. McCain came across as either doddering or drunk.

  8. maybe ryan says:

    >Warner. God forbid that this will reignite his presidential ambitions.

    Just asking – but do you think this ignited any Comey presidential ambitions?

    • lefty665 says:

      Dunno, That had not crossed my mind until you asked the question.  I hope not. You might find the link I posted above to an article by Colleen Rowley on Comey and Mueller interesting.

  9. Kim Kaufman says:

    I still haven’t seen any proof that Russia hacked the DNC or voter registrations or otherwise tampered with the actual election. Am I wrong?

    • greengiant says:

      Wrong words.  Try  “have we seen any evidence that Russian actors”

      Why DNI and NSA will lie or be silent,  why means and methods,   or means and methods and we are too incompetent to figure it out,  we would catch too many crooks,  and parallel construction.   Vote hacking is state law not federal kind of a no go zone along with financial crimes.

      Anyone can and has done the experiment,  do an active anti-Trump and then watch how much harassment you get from Russian IP addresses.   Still going on.

    • bmaz says:

      Yes, you are completely wrong. Either that, or you have no concept what the term “evidence” means within the law.

  10. joejoejoe says:

    Should these 2 paragraphs from Sessions in his recusal be read as next to each other but unrelated?:

    “During the course of the confirmation proceedings on my nomination to be Attorney General, I advised the Senate Judiciary Committee that ‘[i]f a specific matter arose where I believed my impartiality might reasonably be questioned, I would consult with Department ethics officials regarding the most appropriate way to proceed.

    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.”

    WaPo reported on 3/2: “At his news conference, Sessions offered a new explanation: that discussions about his recusal had begun before the revelation of his meetings with Kislyak, that he and ethics officials had agreed on Monday to meet for a final time Thursday, and that at that final meeting he had accepted their recommendation.”

    What would DOJ ethics give to Sessions from 2/14 to 3/2 as the reason for recusal? Do they out and out give him the Kislyak contacts as a reason or is it more of a general caution to step aside? What is causing Sessions to delay recusing if Comey was so sure he would recuse?

    • SpaceLifeForm says:

      Sessions loyal to Trump. Trump still hoping that Comey would squash investigations. When it became apparent that the Trump hamfisting was not going to happen, the writing was on the wall, and those paying attention inside DOJ showed Sessions the correct wall to look at it. He had to recuse else he damages himself, DOJ, and FBI. Sessions, regardless of your opinion of him, has more loyalty to the country than the president. And that is how it should be at DOJ. That is how it should be for *any* US citizen, whether they are in a government role or not. Comey is no dummy. He knew (and knows) what is going on, and he knew that Sessions had to recuse himself, as he said today in different words.

  11. SpaceLifeForm says:

    So, what will be leaked in next few hours after the closed session?

    What attacks will come out regarding Daniel Richman?

  12. SpaceLifeForm says:

    Panic setting in now as expected.

    https://www.washingtonpost.com/world/national-security/comey-testimony-trump-senate-hearing/2017/06/07/afadf87c-4bd0-11e7-bc1b-fddbd8359dee_story.html

    In response to Comey’s testimony, Trump’s personal lawyer, Marc Kasowitz, sent out a statement saying the president “never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone,’’

    Kasowitz also accused Comey of trying to “undermine this administration with selective and illegal leaks of classified information and privileged communications.’’

  13. earlofhuntingdon says:

    Mr. Kasowitz is paid to invent such characterizations, no matter how credible. Besides, Mr. Kasowitz is not under oath and not liable, when giving a press conference, except for his reputation, for being truthful. Nor is Mr. Trump until he’s put under oath. If Congress is doing its job, that should be soon.

    Mr. Kasowitz’s attempted characterization reminds me about a former English chairman of BP, new to his offices, then in Ohio, who asked a secretary to do something by first saying, “When you have a moment….”  The secretary, used to more direct Americanisms, took him at his word.  The chairman hadn’t mean what he said, he meant “Now”.  He was being polite.  Mr. Trump, however, was not.  The circumstances he created made his meaning abundantly clear.

    BTW, as for Paul Ryan’s characterization that Mr. Trump is “new at this”,  hahaha.  Mr. Trump’s defining characteristic, when he wants something or just for fun, is his willingness and determination to intimidate.  What Mr. Trump is new to are demands that he follow rules and that he govern in some interest besides his own.  His response to that is the same as mine to Mr. Ryan, “Hahahaha.”

  14. Avattoir says:

    To “lefty665” re: your comment at 5:18 p.m.

    There’s quite a lot you’ve got wrong in there – so much so it gets me to doubting your comments, motives & purposes overall.
    But here I’ll restrict myself to one point, which IAE disposes of o negates your entire comment.

    Back in July 2016, in the context of his press conference & then testimony before the House, then-FBID Comey both raised the statute you cite and had it raised with him on questioning.
    In that context, Comey discussed the way it appears on its face as ‘problematic’, because it appears not to require “intent”. But he went further than you like: Comey actually went on to mention that implication, of no “intent” being required, as ‘likely rendering it unconstitutional’.

    I don’t know how many times I’ve posted to this effect at this website on this problem. I do know that at least once I went on about it at the kind of length that I expect some here would see it as inappropriately pedantic or at least tl;dr. So I won’t repeat all that here & now.
    Instead, it’s sufficient, or it ought to be so, to point out that what your comment describes as YOUR understanding of that statute is known to law as “strict liability”.

    There is no serious debate among able legal theorists, or among those competent in the practice of criminal &/or constitutional law, that framing a criminal statute so that it might be breached on strict liability is unconstitutional.
    It such instances, the law so affected must be either:
    a) ‘read down’ (Criminal defense attorneys might be happier at putting that as ‘read up’.) to impute the necessity of criminal intent, so for the government to make its case would require proof of criminal intent, or else
    b) struck down entirely for purporting to set up a fatally unconstitutional mental element.

    • bmaz says:

      Yes, exactly. And I believe the distinction you are making is “facially” versus “as applied” lack of constitutionality.

  15. lefty665 says:

    Beginning your comment with an ad hominem attack on me is not a good way to have a constructive dialog, but perhaps that was not your intent. I suggest to you there is a lot less wrong with my take than in your unquestioning adulation of Comey and his opinions.

    Your take, as Comey’s, are at variance with the law. Mine is as relayed to me by members of the IC as their working understanding of the law as it has been on the books for more than 50 years and is supported by considerable case history. Your take and Comey’s are at variance with our legal system too. John Kiriakou raised the defense that he had no intent to disclose classified information. The judge explained to him that was immaterial and threw him in the slammer, which is where he was when Comey made up his flight of unconstitutional fantasy.  Jeffery Sterling is another example, and he is still in jail. The “able legal theorists” you cite apparently do not know much about how the law works in the real world.

    There is no reason to respect Comey’s arrogation of the powers of the Supreme Court as the arbiter of constitutionality or to respect his arrogation of the authority of the DOJ to make decisions on prosecution. Neither of those things were within his scope of authority last year.  They are instead malfeasance. The position of Director of the FBI has a sordid history, almost unbroken, back to its birth.  There is no reason for rational people to have any faith in the Director’s pontifications.

    Comey’s malfeasance last July earned him the opportunity to be fired. He was not because he got Lynch off the hook after her boneheaded soiree with Bill, and he got Hillary off of the hook for her equally boneheaded use of her own private e-mail server for government business that included TS/SCI information. That made Barak and the Dem elites happy campers as Comey cleared the path for Obama’s anointed successor.  In short, Comey subverted the FBI to the political service of the Obama administration and the Democratic party.

    My motive? I do not like that behavior in “public servants”, or anyone for that matter. My purpose? To help those who fail to understand become more insightful. Pretty simple really. Hope that helps your understanding.

     

     

  16. Stephen says:

    Given Trump’s reported continued rage at Sessions for recusing — so much so he’s considering firing him (do it!!!)…

    Firing Sessions is unlikely to happen any time soon if only because that would mean having to find another AG, which in turn would mean more Senate confirmation hearings. It would also mean having to put up with Rod Rosenstein as Acting AG, who is probably not flavour of the month right now either given his appointment of Mueller as special counsel.

    It would more fair to say that Trump is in a bind of his own making. He’s the one who chose Sessions in the first place, a man whose flaws–his Russia connections–Trump must have been (or should have been had he vetted him properly) aware of before he nominated the man. Instead, like Flynn he seems to have valued loyalty over other qualities.

    That raises a troubling issue. Given Comey’s account along with the attitude of Coats and Rogers in their own testimony the other day (i.e. their outright refusal; to answer certain questions), that raises the question of whether they, like Comey, were also asked at some point to make a pledge of personal loyalty to Donald J Trump. If so how many others of his administration were asked to make the same pledge?

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