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What former Justice officials heard in Sessions’ testimony

June 13, 2017 at 6:45 PM EDT
From dealings with former FBI Director James Comey to the attorney general's recusal from the Russia probe, Judy Woodruff gets analysis from George Terwilliger, Walter Dellinger and Carrie Cordero, three former Justice Department officials with extensive experience in government and the law.
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JUDY WOODRUFF: And we turn now to our panel of former Justice Department officials.

George Terwilliger served as former deputy attorney general and acting attorney general under President George H.W. Bush. Walter Dellinger served in the Clinton administration as assistant attorney general and as acting solicitor general. And Carrie Cordero, she served in the Justice Department under presidents George W. Bush and President Obama, where she worked on matters of national security.

Now, before I speak with them, one issue today was former FBI Director Comey’s testimony about a February meeting in the Oval Office, when everyone else left, and the president asked him to stay.

Democratic Senator Mark Warner today pressed the attorney general on that. Let’s listen.

SEN. MARK WARNER, D-Va.: Mr. Comey’s testimony last week was that he felt uncomfortable when the president asked everyone else to leave the room. He left the impression that you lingered, perhaps a sense that you felt uncomfortable about it as well.

JEFF SESSIONS: Well, I would just say it this way. We were there. I was standing there. And without revealing any conversation that took place, what I do recall is that I did depart. I believe everyone else did depart, and Director Comey was sitting in front of the president’s desk, and they were talking.

So, that’s what I do remember. I believe it was the next day that he said something, expressed concern about being left alone with the president. But that, in itself, is not problematic. He didn’t tell me, at that time, any details about anything that was said that was improper.

I affirmed his concern that we should be following the proper guidelines of the Department of Justice and basically backed him up in his concerns.

JUDY WOODRUFF: So, let’s turn now to our three panelists.

Carrie Cordero, I’m going to start with you.

What do you make of that answer that he really didn’t have an explanation for leaving the room, whether he thought that was unusual, leaving the Oval Office when the president wanted to be alone with the then FBI director, and he didn’t seem terribly upset about the fact that the FBI director was concerned the next day when he told him about it?

CARRIE CORDERO, Former Justice Department Official: Right.

So, these memos that he’s talking about, this longstanding Department of Justice policy, has to do with, in recent history, there was a memo that an Attorney General Mukasey issued, that Eric Holder issued that restrict the contacts between the White House and the Justice Department and the FBI investigators on ongoing investigations.

And so it was still an odd answer, because, given the fact that there was this major investigation going on that the attorney general himself knew that he was recused from, it would be unusual. Why would the president need to hold back the FBI director about something that the attorney general couldn’t be present for, other than the Russia investigation?

In other words, anything else that the FBI director and the president needed to discuss of a substantive nature, one would think the attorney general could be there for it.

JUDY WOODRUFF: George Terwilliger, what about that?

GEORGE TERWILLIGER, Former U.S. Deputy Attorney General: Well, I don’t think it’s that unusual for a president to talk to an FBI director alone.

I think it would probably be worth asking a number of former FBI directors if they ever had one-on-one conversations with the president.

JUDY WOODRUFF: Even in this — in the middle of this kind of an investigation?

GEORGE TERWILLIGER: Yes.

I mean, I think, in hindsight, anybody that looks at it would go, it would have been better for that not to have occurred, but the fact that the president asked and the attorney general — I just — I mean, he’s a courteous man.

I think he respected the president’s wishes. And more than anything, Judy, I — what came through to me today, more than an attorney general, was I saw a man who said, you’re not going to play political football with my integrity, and said that very, very firmly even as to that question.

JUDY WOODRUFF: Walter Dellinger, what did you take away from the hearing overall, and what about the specific point about the president asking everybody to clear the room while he talked to James Comey?

WALTER DELLINGER, Former Acting Solicitor General: Well, I think what was particularly improper about that conversation was the content of it, that is, the president saying, I hope you will end this investigation into General Flynn.

Even if that wasn’t a directive, that statement that you should end it because he’s a good guy undercuts our basic notion of equal justice under law. We shouldn’t be investigating or stopping investigations because the president thinks someone is a good guy or a U.S. attorney thinks someone is a good guy. That’s number one.

My larger takeaway is that the attorney general seemed relatively passionate in defending his own lack of involvement with the Russians and quite convincing.

JUDY WOODRUFF: He did.

WALTER DELLINGER: He showed much less concern about this extraordinary event that the Russian, a foreign military hostile power, tried to interfere in our elections. He referred to it as improper, but he didn’t seem to have any energy about where that investigation should go, didn’t seem to suggest that the president of the United States is concerned about what was really a foreign attack by a hostile power on the core of our democracy.

JUDY WOODRUFF: And we have got a little excerpt of that coming up, and I want to ask you that.

But just quickly, on this point, Carrie Cordero, again, on — is there a precedent for the attorney general basically saying, it’s OK for me to remove myself from a conversation and let the president talk to the head of the FBI about something sensitive?

CARRIE CORDERO: Well, so, in other circumstances, if, for example, the FBI director was at the White House to give a counterterrorism briefing, on some really substantive matter, then, sure. But there would be other aides in the room, too. That type of briefing wouldn’t take place just with the president and the FBI director.

But those are the types of scenarios that would be more routine types of meetings between a president and an FBI director, if it was some substantive type of briefing.

JUDY WOODRUFF: Well, and — and keep all that in mind, because we want to turn to another aspect of what came out in today’s testimony.

And that is that more than one senator asked the attorney general about the firing of James Comey. The attorney general testified that he didn’t talk to the FBI director about his job performance before the president dismissed him.

He did detail for California Democrat Dianne Feinstein the issues that he had with Comey, but he declined to answer a later question from Maine independent Senator Angus King.

JEFF SESSIONS, U.S. Attorney General: We had problems there. And it was my best judgment that a fresh start at the FBI was the appropriate thing to do.

And when asked, I said that to president. It’s something I had adhered to. Deputy Rosenstein’s letter dealt with a number of things. When the — Mr. Comey declined the Clinton prosecution, that was really a usurpation of the authority of the federal prosecutors in the Department of Justice.

It was a stunning development. The FBI — the investigative team, they don’t decide prosecution policies. And that was a thunderous thing. He also commented at some length on the declination of the Clinton prosecution, which you shouldn’t normally — you shouldn’t do.

The policies have been historic. If you decline, you decline and you don’t talk about it. There were other things that had happened that indicated to me a lack of discipline. And it caused controversy on both sides of the aisle. And I had come to the conclusion that a fresh start was appropriate.

(CROSSTALK)

SEN. ANGUS KING, I-Maine: In any of your discussions about the firing of James Comey, did the question of the Russian investigation ever come up?

JEFF SESSIONS: I cannot answer that because it was a communication by the president, or, if any such occurred, it would be a communication that he has not waived.

JUDY WOODRUFF: So, a number of people, George Terwilliger, were struck by the fact that the attorney general wouldn’t talk about these conversations he had with the president.

GEORGE TERWILLIGER: Well, to me, that makes perfect sense.

The privilege belongs to the president, and it wouldn’t be up to a subordinate official to take it upon himself to waive it by answering the question at that time and place.

Otherwise, the president loses the ability to assert or preserve that privilege.

JUDY WOODRUFF: And you and I were discussing this earlier, Walter Dellinger.

We were trying to understand, to what extent is there a precedent for not answering some of these questions? We heard the attorney general say — at one point, he said, I think there’s even a piece of paper at the Justice Department that refers to privileged or confidential conversations between the president and the attorney general.

WALTER DELLINGER: You know, he was very well-prepared, but he didn’t bring any such piece of paper with him.

And I would be surprised, because I don’t believe there is any privilege of refusing to answer questions from a congressional committee, unless the president is going to invoke executive privilege.

And he didn’t want to say that. Through a dozen iterations of the question, he would simply say, it was confidential, without asserting any privilege. Finally, he suggested — and the committee should follow up on this — here are the questions we want answered. Did you discuss the Russian investigation in connection with the firing of Comey?

And if the president then wants to assert executive privilege, he can do so in writing communicated to the committee. But, if not, then the question ought to be answered by the attorney general.

JUDY WOODRUFF: And, Carrie Cordero, this really does get to the heart of a lot of what we’re talking about today, and that is, the president has not so far exerted executive privilege. He has not said to the attorney general, you cannot answer these questions.

But the attorney general said, at least on two occasions today, that he’s trying to protect the president’s right to later on exert executive privilege, which is a way of looking at this, I think, some of us haven’t seen.

CARRIE CORDERO: Right.

So, this is the second week in a row that senior administration officials have had difficulty answering this question. DNI Coats, Director of National Intelligence Coats, and Director of NSA Rogers last week had a similar problem, where they didn’t seem to have been advised by the White House Counsel’s Office that they should exert executive privilege, and yet they were uncomfortable giving answers to questions.

Attorney General Sessions handled it a little bit differently. He did say that he was trying to protect a potential exertion of executive privilege, but he also raised other privileges. He said maybe there are some other privileges.

And so that reminded me a little bit more of the attorney-client-type privilege that sometimes the Department of Justice asserts, but that’s when the Justice Department is giving legal advice to the president, and they don’t then want to provide information to Congress.

So, he was still vague and unclear about which privileges he was potentially asserting.

JUDY WOODRUFF: And that sounded like a different question.

So, I’m coming back to you, George Terwilliger, to ask, on just how solid is this ground that the attorney general stands on when he says, I’m protecting the president’s right to exert executive…

GEORGE TERWILLIGER: I think it’s very solid.

And both Democrat and Republican officials have asserted that privilege over the years, as recently as in the Obama administration through Attorney General Holder. It’s really quite simple, I think, Judy.

If the president has a privilege to have confidential discussions with his advisers, which include Cabinet officials, the Cabinet officials shouldn’t be the ones to decide the waive the confidentiality of those communications.

And he doesn’t know what questions he is going to be asked before he gets up there, to ask permission ahead of time, can I talk about this, can I talk about that? So, I think it’s just a very practical issue.

JUDY WOODRUFF: So, there is another important part of this, what came out today in today’s testimony that we want to look at.

And that is on the attorney — on the issue of the attorney general’s recusing himself from the Russia investigation.

Mr. Sessions clashed at one point with Oregon Democratic Senator Ron Wyden, who challenged him on whether he adhered to that recusal.

SEN. RON WYDEN, D-Ore.: The question is, Mr. Comey said that there were matters with respect to recusal that were problematic and he couldn’t talk about them. What are they?

JEFF SESSIONS: Why don’t you tell me? There are none, Senator Wyden. There are none. I can tell you that for absolute certainty.

This is a secret innuendo being leaked out there about me, and I don’t appreciate it. And I have tried to give my best and truthful answers to any committee I’ve appeared before. And it’s really — people are suggesting through innuendo that I have been not honest about matters, and I’ve tried to be honest.

SEN. RON WYDEN: Why did you sign a letter recommending the fire — firing of Comey, when it violated your recusal?

JEFF SESSIONS: It didn’t violate my recusal. It didn’t violate my recusal. That would be answer to that. And the letter that I signed represented my views that had been formulated for some time.

SEN. RON WYDEN: Mr. Chairman, just if I can finish, that answer, in my view, doesn’t pass the smell test.

JUDY WOODRUFF: So, Walter Dellinger, this is getting at the — what you heard, the tug and pull about all afternoon, and that is that letter that the attorney general signed and the deputy attorney general signed criticizing then FBI Director Comey as the grounds for his dismissal was all about how he handled the Hillary Clinton, or largely about how he handled the Hillary Clinton e-mail investigation.

Later on, the president said he fired him mainly over Russia, the Russia investigation. And the attorney general is basically saying, I recused myself from the Russia investigation, but that’s not a problem here.

WALTER DELLINGER: Well, the attorney general makes the point that he’s responsible for the entire department, and he has to make personnel decisions.

Now, this one got awfully close to his recusal issue. And maybe he should have stepped aside. But, to me, the most interesting question that wasn’t fully answered was, were you aware — when you sent the letter to the president recommending that Comey be fired, were you aware that the president had already decided to fire him?

And that question, he — the answer got evaded in the back-and-forth. And that will be an interesting question for someone to follow up with.

JUDY WOODRUFF: What is your take on this exchange?

CARRIE CORDERO: Well, the nut of it is, is, was former Director Comey fired because of the Russia investigation? The president has said in an interview that it was, that Russia is what was on his mind.

And Attorney General Sessions is clinging to this argument that his — his justification, which is that it was because of the handling of the Hillary Clinton case. And because he didn’t answer the one question, which was, in the context of discussing with the president the firing of the FBI director, did you also discuss the Russia investigation, that was the question that really needed to be answered to tie these pieces together.

JUDY WOODRUFF: So, we don’t have the answer to the question?

GEORGE TERWILLIGER: I don’t think he’s clinging to anything.

It’s very possible — I don’t know the answer, but it’s very possible that there could be two very different reasons on the part of the president and the attorney general and the deputy attorney general for dismissing Mr. Comey.

Indeed, I know you may have to be sort of part of the Justice family or cognoscenti to appreciate this, but what Jim Comey did last July in terms of usurping, as the attorney general put it, the authority of the Justice Department to make a prosecution decision, and then the utter trashing of Hillary Clinton that he did along with that, that is so far outside the mainstream, that the attorney general said today that he and Mr. Rosenstein had been talking about that for some time and the need to replace Mr. Comey.

The fact that that may have been, or not, I don’t know, convenient to the president for other reasons is something, you know, that I’m sure the Senate will want to explore, but it doesn’t impugn the attorney general’s integrity at all.

JUDY WOODRUFF: But just to quickly follow up, if the Russia investigation was any part of the reason for the president’s firing the FBI director, and the attorney general was — attached himself to that decision, that wasn’t a problem? That didn’t violate his recusal?

GEORGE TERWILLIGER: Well, it might have if, in fact, you know, he thought that was the reason or he acted as that — the reason.

But I think Walter a few minutes ago made a very good point. The recusal is as to one case out of thousands in the Justice Department, albeit an important one. The attorney general still has a responsibility to run the department, not the least of which is to make sure he has the right people in the top jobs.

JUDY WOODRUFF: Just very quickly, Walter Dellinger, what is the — what the — do you think we can get to the bottom of this question of whether the recusal was violated in some way?

WALTER DELLINGER: I think we will, because I think the special counsel, follow-up hearings are going to say, look, either the president formally invoke executive privilege or answer the question about whether you knew already that the president made up his mind to fire Comey, and to deal with the fact that it is extremely unusual for a president to have half-a-dozen conversations with an FBI director directly.

JUDY WOODRUFF: Walter Dellinger, Carrie Cordero, George Terwilliger, we thank you all.

Remarkable day, another remarkable day.

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