With White House officials and oversight leaders within the House Republican caucus eager to move on without further investigations of former National Security Adviser Mike Flynn, new Attorney General Jeff Sessions faces the first clear test of his willingness to scrutinize his boss.
Flynn’s conversations with a Russian diplomat about American sanctions are a potential criminal violation of the Logan Act. While some Senate Republicans have vowed to expand their investigations into Russian hacking allegations in light of Flynn’s misconduct and sudden resignation, legislative branch officials have no authority to mount a criminal inquiry.
“The law used to be that the Judiciary Committee of the House or the Senate could ask the Attorney General to appoint a special counsel,” University of Baltimore law professor Charles Tiefer told ThinkProgress. “Those provisions were allowed by the Republicans to lapse in 1999.”
Now, Tiefer said, the only person within government who can conduct such an investigation is Sessions. “The decision is made by the Attorney General,” he said.
Trump has already ignored the DOJ’s advice on Flynn’s actions at least once, reportedly disregarding a January warning from Obama holdover Sally Yates that the since-resigned NSA was susceptible to blackmail by the Russian government because he had lied about discussing sanctions. Trump fired Yates days later after she determined that his partial travel ban for seven majority-Muslim countries was likely unconstitutional and refused to defend it in court.
That episode prompted Democrats to worry that Sessions would not be willing to stand up to Trump when the law demands he do so. Flynn’s apparent violations of the Logan Act, and the cloud of mystery surrounding Trump’s own knowledge of Flynn’s actions prior to Inauguration Day, provides the first real test of Sessions’ backbone.
Sessions has praised independent prosecutors in the past, at least when they were tasked with investigating a Democratic administration.
“In theory, the Department of Justice should be able to handle any prosecution,” he told the Birmingham News in 1999 when lawmakers were debating whether or not to extend the law allowing Congress to request special prosecutors like Kenneth Starr. “But when you’re dealing with the president at whose pleasure the attorney general serves…then you obviously have a serious problem.”
Sessions expressed a similar distrust of internal DOJ officials’ roles in investigations of the executive branch during the 2001 hearings regarding Michael Chertoff’s nomination as Assistant Attorney General for the Criminal Division, seconding a concern raised by the late Sen. Arlen Specter (R-PA).
But perhaps Sessions’ most explicit public endorsement of the importance, integrity, and essential independence of special prosecutors dates to the spring of 2000. After then-Sen. Carl Levin (D-MI) had criticized Robert Ray, who had taken over official investigations of the Clinton White House from Kenneth Star, Sessions took to the floor to blast Levin, praise Ray, and draw a comparison to Russia that rings especially sour in the context of the Flynn scandal.
“I don’t believe a duly appointed special prosecutor needs to be subjected to abuse on the floor of the Senate for doing what he is instructed to do,” Sessions said. “And to say it is like Russia, I don’t appreciate that one bit. What is like Russia is when leaders lie, cheat, steal, and maintain their office. That is what happens in a country such as Russia, not in a free democracy where all Americans are equal and have a right to know that every other public official is equal and subject to the law just as they are.”
A few years later, however, Sessions found himself on the other side of the fence. When then-Attorney General Eric Holder sought a special prosecutor to investigate the CIA’s interrogation program following the 9/11 terror attacks, Sessions and seven other Republicans signed a letter criticizing the move.
“We fear that the true cost of this endeavor will ultimately be borne by the American people, who rely on the intelligence community, operating without distraction, to protect them from the many threats, known and unknown, that our country faces in this post-9/11 world,” the letter said.
Sessions also “questioned why the case was handed to Durham instead of a Justice Department lawyer, saying that previous independent prosecutors have taken ‘an expansive view of their investigative authority,’” the Washington Post reported in August 2009.
With Sessions’ former colleagues in the Senate Republican caucus talking a good game about expanding their own investigations into Russian interference, the new Attorney General is in a particularly awkward position.
Democrats have already raised concerns that their longtime colleague does not possess the requisite independence of spirit to stand up to President Trump should he defy the law.
Sessions had himself praised the woman Trump fired as acting Attorney General, for precisely the same independence and fealty to the law for which Trump had her sacked. Sessions’ comments in 2000 that independent, rigorous investigations of potential wrongdoing in the executive branch distinguish American society from Russian corruption may up the stakes further.