The Richard Kleindienst precedent for prosecuting Attorney General Jefferson Beauregard Sessions III

Well, that didn’t take long. Once GOP Congressional leaders began calling for our “Confederate rebel” Attorney General Jefferson Beauregard Sessions III to recuse himself from the Trump-Putin campaign investigations on Thursday, as the New York Times editorializes, Jeff Sessions Had No Choice but to recuse himself, something he should have taken the pledge to do at his Senate confirmation hearings.

A number of GOP leaders are now asserting that Session’s recusal solves the problem, he will simply “amend” his statements to the Senate to “clarify” his remarks, and avoid charges of failure to provide accurate information to Congress or perjury.

These Tea-Publican apologists (IOKIYAR) need to step into Mr. Peabody’s WAYBAC Machine and set the dial to 1972 for the historical precedent of another Attorney General who lied to Congress during his confirmation hearings: Richard Kleindienst.

Richard Painter, a professor at the University of Minnesota Law School who was the chief White House ethics lawyer from 2005 to 2007, explains at the New York Times why Jeff Sessions Needs to Go:

In the wake of Wednesday’s revelation that Attorney General Jeff Sessions spoke with Russia’s ambassador to the United States while working with the Trump campaign, despite denying those contacts during his confirmation hearings, Mr. Sessions recused himself from overseeing any Justice Department investigation into contacts between the campaign and the Russian government. Some members of Congress are saying that’s not enough; they want him to resign.

It’s a bombshell of a story. And it’s one with a clear and disturbing precedent.

In 1972 Richard G. Kleindienst, the acting attorney general, appeared before the Senate Judiciary Committee in a confirmation hearing on his nomination by President Richard Nixon to be attorney general. He was to replace Attorney General John N. Mitchell, who had resigned to run Nixon’s re-election campaign (and who would later be sent to prison in the Watergate scandal).

Several Democratic senators were concerned about rumors of White House interference in a Justice Department antitrust suit against International Telephone and Telegraph Corporation, a campaign contributor to the Republican National Committee. They asked Kleindienst several times if he had ever spoken with anyone at the White House about the I.T.T. case. He said he had not.

That wasn’t true. Later, after Kleindienst was confirmed as attorney general, the special prosecutor, Leon Jaworski, and his team uncovered an Oval Office tape recording of a phone call in which Nixon told Kleindiesnt to drop the I.T.T. case. Kleindienst claimed that he thought the senators’ questions were limited to a particular period, not the entire time during which the case was pending.

Jaworski didn’t buy it. He filed criminal charges against Kleindienst, who had earlier resigned as attorney general. Eventually Kleindienst pleaded guilty to failure to provide accurate information to Congress, a misdemeanor, for conduct that many observers believed amounted to perjury. He was also reprimanded by the Arizona State Bar.

Last month, during Mr. Sessions’s confirmation hearing for attorney general, Senator Al Franken, Democrat from Minnesota, asked Mr. Sessions what he would do if he learned of evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the 2016 campaign.

“I’m not aware of any of those activities,” Mr. Sessions answered, adding, “I have been called a surrogate at a time or two in that campaign, and I did not have communications with the Russians.”

Mr. Sessions also, on his written Senate confirmation questionnaire, denied having had any communications about the 2016 election with the Russians.

We now know that Mr. Sessions had at least two conversations with the Russian ambassador to the United States in July and September 2016 while Mr. Sessions was an adviser to the Trump campaign.

Once again, we see an attorney general trying to explain away misleading testimony in his own confirmation hearing. A spokeswoman for Mr. Sessions says that “there was absolutely nothing misleading” about his answer because he did not communicate with the ambassador in his capacity as a Trump campaign surrogate. His contacts with the Russian ambassador, he claims, were made in his capacity as a member of the Senate Armed Services Committee.

That may or may not have been the case (individual senators ordinarily do not discuss committee business with ambassadors of other countries, particularly our adversaries). Regardless, Mr. Sessions did not truthfully and completely testify. If he had intended to say that his contacts with the Russians had been in his capacity as a member of the Senate Armed Services Committee and not for the Trump campaign, he could have said that. He then would have been open to the very relevant line of questioning about what those contacts were, and why he was unilaterally talking with the ambassador of a country that was a longstanding adversary of the United States.

He did not reveal the communications at all, however. He did so knowing that Senator Franken was asking about communications with the Russians by anyone working for the Trump campaign, including people who, like Mr. Sessions, had other jobs while they volunteered for the Trump campaign. Mr. Sessions’s answer was at best a failure to provide accurate information to Congress, the same conduct that cost Attorney General Kleindienst his job.

And this time, unlike in 1972, the attorney general’s misleading testimony involves communications not with the president of the United States, but with a rival nuclear superpower. In 1972, any federal employee who provided such inaccurate information under oath about communications with the Russians would have been fired and had his or her security clearances revoked immediately, and probably also would have been criminally prosecuted.

The Cold War may be over, but Russia in the past few years has once again sought to destabilize the democratic process not only in the United States, but also in much of Europe.

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President Trump has already fired his national security adviser, Michael Flynn, for misleading Vice President Pence about his conversations with the Russians. Misleading the United States Senate in testimony under oath is at least as serious. We do not yet know all the facts, but we know enough to see that Attorney General Sessions has to go as well.

For an exceptional explanation of why Session’s press conference yesterday announcing his recusal from the Trump-Putin campaign investigations was the mistake of bad lawyering with a client facing perjury charges, you must see Lawrence O’Donnell’s opening segment of The Last Word last night.

Our “Confederate rebel” Attorney General Jefferson Beauregard Sessions III is eventually going to be forced to resign, and he should be prosecuted following the precedent of Attorney General Richard Kleindienst.

UPDATE: Philip Lacovara, counsel to Watergate special prosecutors Archibald Cox and Leon Jaworski, and Lawrence Robbins, an assistant U.S. attorney and assistant to the solicitor general, write, Federal prosecutors have brought charges in cases far less serious than Sessions’s:

[A]s lawyers at the Justice Department and attorneys in private practice who have represented individuals accused in such cases, we can state with assurance: Federal prosecutors have brought charges in cases involving far more trivial misstatements and situations far less consequential than whether a nominee to be the nation’s chief law enforcement officer misled fellow senators during his confirmation hearings.

* * *

As any number of witnesses have learned the hard way, it is a federal felony to lie to Congress. Under Title 18 of the U.S. Code, Sections 1001 and 1621, perjury before Congress is punishable by up to five years imprisonment. To prove that offense, a prosecutor would have to establish that Sessions’s answer was false, that he knew it was false when made and that the subject matter of the answer was “material” to the congressional inquiry in which he was testifying.

Those elements all appear to be present. The element of falsity is established by the conceded fact that he did “have communications with the Russians” during the Trump campaign. And there can scarcely be any doubt that the subject matter of Sessions’s answer was highly material to the Senate’s consideration of his nomination. Any suggestion that he participated in the suspected interaction between Trump campaign personnel and the Russian government was, and remains, a matter of grave concern.

That leaves one element: Did Sessions know that his answer was false? He says no, asserting that he understood Franken to be asking only whether he had contact with the Russian government in his capacity as a Trump campaign surrogate. While a jury might accept that defense, there are many reasons to reject it: Sessions’s answer baldly denied any contact. Moreover, Sessions went out of his way to deny contact in response to a question that did not inquire about that subject. By doing so, he preempted an important line of inquiry that might otherwise have been fruitfully pursued.

Certainly there is precedent for a prosecution in this context. Part of the fallout from Watergate included the special prosecutor’s investigation of Richard Kleindienst, who had resigned from his position as attorney general, for alleged false statements during his confirmation hearing before the Senate Judiciary Committee. Kleindienst was asked whether the White House had interfered with a Justice Department antitrust action against the International Telephone and Telegraph Corporation. He stated, “I was not interfered with by anybody at the White House” — but President Nixon and one of his top aides had each called Kleindienst regarding the case. Kleindienst pleaded guilty to a misdemeanor charge for “refus[ing] and fail[ing] to answer accurately and fully” questions at a congressional hearing.

Those facts left no room for any colorable defense on the “knowledge” issue. But when Justice Department officials decide whether to bring a case against Sessions — or, more appropriately, when an independent counsel is appointed and resolves that question — this must be done against the backdrop of other perjury cases that the department has chosen over the years to bring. And the department has prosecuted individuals who advanced defenses very similar to Sessions’s arguments here, often where there was far less at stake.

[See examples]

A government that has been willing to prosecute relatively small and questionable instances of falsity in connection with matters of comparatively minor importance should have difficulty explaining why Sessions’s testimony would receive a free pass.

Because IOKIYAR in Trump World.