On 8 June 2017, just hours after fired Federal Bureau of Investigation director James Comey testified before the Senate Intelligence Committee under oath, the Department of Justice released a statement written by spokesman Ian Prior, chiefly dealing with the question of why Attorney General Jeff Sessions recused himself from overseeing the FBI's ongoing investigation into collusion between President Donald Trump's campaign, and the Russian government's hacking efforts to help him win the 2016 election.
The DOJ statement says Sessions' decision to recuse himself was a formality, due to his close ties with Trump's campaign and that he had begun discussing with his staff the possibility of doing so shortly after taking office. That contradicts portions of Comey's testimony that raised questions about why Sessions recused himself when he did. Although the DOJ's response to Comey's testimony pulls attention to Sessions' official reason for recusing himself from the Russia probe, a government accountability group has filed a lawsuit over the DOJ's failure to provide documents related to the recusal decision under of Freedom of Information Act laws.
Comey, who was fired by President Trump on 9 May 2017 while the Bureau he led was investigating Russia ties, testified he had written a number of contemporaneous memos about one-on-one meetings initiated by President Trump. Comey said the president had demanded loyalty from him, and pressured him to back off investigating Trump's former national security adviser, Michael Flynn.
Some of Comey's more vague statements raised questions about whether Sessions has come under scrutiny in the ongoing probe and that may have been behind his decision to recuse himself from overseeing the investigation.
The DOJ statement refuted this:
Given Attorney General Sessions’ participation in President Trump’s campaign, it was for that reason, and that reason alone, the Attorney General made the decision on March 2, 2017 to recuse himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.
Prior took issue with remarks that came during an exchange between Comey and Senator Kamala Harris (D-California):
HARRIS: Is — so is your knowledge of the extent of his recusal based on the public statements he’s made? Or the...
HARRIS: ... OK. So was there any kind of memorandum issued from the attorney general or the Department of Justice to the FBI, outlining the parameters of his recusal?
COMEY: Not that I’m aware of.
Prior wrote that a number of high-level DOJ officials, including Comey, were sent a memo the same day Sessions recused himself:
In his testimony, Mr. Comey stated that he was “not aware of” “any kind of memorandum issued from the Attorney General or the Department of Justice to the FBI outlining the parameters of [the Attorney General’s] recusal.” However, on March 2, 2017, the Attorney General’s Chief of Staff sent the attached email specifically informing Mr. Comey and other relevant Department officials of the recusal and its parameters, and advising that each of them instruct their staff “not to brief the Attorney General about, or otherwise involve the Attorney General in, any such matters described.”
As supporting evidence, the statement was accompanied by an e-mail from the Attorney General's Chief of Staff Jody Hunt, sent on 2 March 2017 and addressed to top Justice Department officials reiterating that after consideration and meetings with career staff, Sessions had decided to recuse himself from any investigations related to the president's campaign. The DOJ's statement at the time announcing his recusal states the timing coincided with a final meeting with staff to discuss the matter.
Reports in the news media indicate that although the official DOJ statements make Sessions' recusal seem like an inevitability and formality, questions lingered in the days leading up to it about whether he would — and it seemed that he was initially resistant to the idea.
On 14 February 2017, The New York Times reported:
During a bitter confirmation fight that focused partly on his closeness to Mr. Trump, Mr. Sessions said last month that he saw no need to remove himself from any decisions involving Russia-related investigations and the White House, writing that he was “not aware of a basis to recuse myself.”
That remains his answer, an adviser to Mr. Sessions said Tuesday, speaking on condition of anonymity in discussing private conversations. None of the recent events involving Mr. Flynn had moved the attorney general to reconsider his stance, the adviser said.
Sessions agreed to recuse himself on 2 March 2017, one day after the Washington Post broke a story revealing that contrary to what he had testified under oath in a 10 January 2017 confirmation hearing, he had met with a Russian envoy not once, but twice in 2016:
One of the meetings was a private conversation between Sessions and Russian Ambassador Sergey Kislyak that took place in September in the senator’s office, at the height of what U.S. intelligence officials say was a Russian cyber campaign to upend the U.S. presidential race.
The previously undisclosed discussions could fuel new congressional calls for the appointment of a special counsel to investigate Russia’s alleged role in the 2016 presidential election. As attorney general, Sessions oversees the Justice Department and the FBI, which have been leading investigations into Russian meddling and any links to Trump’s associates. He has so far resisted calls to recuse himself.
When announcing his recusal, Sessions admitted that he had met with Kislyak but said that it was in his capacity as a member of the Senate Armed Services Committee. He insisted he had answered the question honestly, as he had understood it. CNN reported on 31 May 2017 that congressional investigators are looking into the possibility of a third undisclosed meeting between Sessions and Kislyak on 27 April 2016.
When Comey was questioned by Senator Ron Wyden (D-Oregon) about why he told his FBI leadership team about Trump talking to him alone about the Russia probe, but did not tell Sessions (who at the time was his direct supervisor), Comey indicated some of the facts surrounding Sessions' actions can't be discussed publicly:
Our judgment, as I recall, was that he was very close to and inevitably going to recuse himself for a variety of reasons. We also were aware of facts that I can’t discuss in an open setting that would make his continued engagement in a Russia-related investigation problematic.
The government accountability group Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit on 4 April 2017, seeking documents from the DOJ that related to Sessions' decision to recuse himself. In the lawsuit, CREW notes they filed a Freedom of Information Act (FOIA) request for records, which the DOJ did not release.
The records they sought included anything containing or reflecting advice to Sessions about recusing himself, his schedule from 27 February to 3 March 2017, and "all documents effectuating the Attorney General's recusal within DOJ."
On 1 June 2017, after still getting no documents in response to their request, the group again asked the courts to intervene. CREW spokesman Jordan Libowitz told us:
It appears there's more going on than the public knows and that’s why we and many others are interested in finding out exactly what it is. I think Comey's testimony emphasizes how important it is to find out what the full extent of Sessions' contact [with Russia] was and what went into the decision for the recusal. We don’t know what that is but it sure seems like there’s something there.