Attorney General Jeff Sessions on Tuesday resisted calls from Republicans that he appoint a second special counsel to investigate a slate of conservative allegations related to former Secretary of State Hillary Clinton.
In a marathon appearance before the House Judiciary Committee, the pressure the former Alabama senator faces from his own party and the White House was at the forefront even as he endured tough questions from Democrats.
The most memorable exchange of the day came when Sessions told a testy Rep. Jim Jordan (R-Ohio), a leading voice among House conservatives, that it would take “a factual basis that meets the standard of a special counsel” for the Justice Department to appoint a special prosecutor.
{mosads}“We will use the proper standards and that’s the only thing I can tell you, Mr. Jordan,” Sessions said. “You can have your idea, but sometimes we have to study what the facts are and to evaluate whether it meets the standards it requires.”
Sessions on Tuesday did not entirely close the door to a probe and later clarified that he had made no “prejudgment” on the need for a new special counsel.
He testified that he has directed senior Justice Department prosecutors to “evaluate” the concerns raised by conservatives — including whether any merit the appointment of a special counsel.
But it was apparent throughout the five-and-a-half-hour hearing that his refusal so far to appoint a special prosecutor is frustrating Republicans.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) in his opening statement zeroed in on his own stymied demands for a special counsel — and Sessions’s decision to recuse himself from the Justice Department’s Russia probe, which has soured his relationship with President Trump.
“You have recused yourself from matters stemming from the 2016 election, but there are significant concerns that the partisanship of the FBI and the department has weakened the ability of each to act objectively,” Goodlatte said.
As special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election has escalated, Sessions has come under pressure from Trump himself to take action against Clinton, the 2016 Democratic presidential nominee.
On Nov. 3, shortly before leaving for a nearly two-week trip to Asia, Trump told reporters that the Justice Department should be “looking at” Clinton and the Democrats.
Asked if he would fire Sessions if the Justice Department didn’t have agents investigate the Democratic National Committee, Trump responded, “I don’t know.”
“A lot of people are disappointed in the Justice Department, including me,” he said.
House Republicans have urged Justice to investigate putative wrongdoing by the Clinton Foundation, as well as the 2010 sale of a Toronto-based uranium company with U.S. holdings to a Russian state-owned firm — a sale Trump has also repeatedly highlighted.
They have also demanded a probe into how the Obama Justice Department handled the investigation into Clinton’s private email server, something the department’s inspector general is currently investigating.
Conservative media has amplified the pressure on Sessions, setting up a drumbeat of demands for a second special prosecutor.
It all made for a grueling day for the beleaguered attorney general. The sudden pressure from Republicans — along with hours of tough questions from Democrats on alleged discrepancies in his previous congressional testimonies — left Sessions on the defensive and highlighted his perilous standing in the administration.
The appointment of a special prosecutor to investigate the president’s political opponents would almost certainly raise questions about the Justice Department’s political independence — something Sessions and the DOJ appear to be worried about.
“You must know the Department will never evaluate any matter except on the facts and the law,” Assistant Attorney General Stephen Boyd wrote in a Monday letter alerting Goodlatte of the internal review. “Professionalism, integrity, and public confidence in the Department’s work is critical for us, and no priority is higher.”
Democrats have slammed even the suggestion of a new special counsel as a partisan move that reflected a dangerous acquiescence to political demands from the president.
Sessions rejected a fiery argument from Jordan that “it sure looks like a major political party was working with the federal government … so they could then get a warrant to spy on President Trump’s campaign.”
“I would say ‘looks like’ is not enough basis to appoint a special counsel,” Sessions said sharply.
He later said that the he “did not mean to suggest I was taking a side one way or the other on that subject.”
“I was simply responding that we would have to have full details before we made a decision on whether or not a special counsel is required,” he said.
While the internal review process Sessions revealed in the Monday letter could theoretically lead to the appointment of a new special counsel, it could also result in a recommendation from career attorneys to dismiss the matter — a notion that gained some steam after Tuesday’s testimony.
“I think this letter is best understood not as a hint to Trump that Sessions will do as the President wants, but as a way of shunting the matter to a mechanism that will enable him not to act,” noted Benjamin Wittes, a confidant of former FBI Director James Comey and editor of the national security blog Lawfare.
Should Justice move to open an investigation related to Clinton, it remains an open question whether Sessions would recuse himself, as he has done from the Mueller probe.
The attorney general during his confirmation hearing in the Senate committed to stepping aside from any investigations related to the Democratic presidential candidate.
“I believe the proper thing for me to do would be to recuse myself from any questions involving those kind of investigations that involve Secretary Clinton and that were raised during the campaign or to be otherwise connected to it,” he told Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) at the time.
Grassley pressed him to clarify: “You intend to recuse yourself from both the Clinton email investigation and any matters involving the Clinton Foundation, if there are any?”
“Yes,” Sessions responded.
He declined to answer questions Tuesday regarding whether he has recused himself from any investigation related to Clinton, arguing that a yes-or-no answer would run afoul of Justice Department regulations requiring absolute silence about ongoing probes.
House Republicans are still moving forward with their own investigations in the wake of Trump’s clarion call that they “do something.”
Absent action from Justice, Goodlatte said Tuesday, his committee “had no choice” but to open their own investigation — announced late last month — into the department’s handling of the Clinton investigation.
But proponents of a special counsel still left Tuesday’s hearing dissatisfied.
“Last night, you sort of lean to the fact that they were genuinely considering a special counsel,” Jordan told The Hill after the hearing.
“After his — he seemed to get a little fired up when I was asking my questions — I tend to think they’re leaning against that,” he said.