Chuck Schumer and the Democrats’ Plan to Trap Jeff Sessions

That the Attorney General may well be forced to relent and let a special prosecutor probe him shows how corrupt it was of Trump to name him in the first place.


Photo Illustration by The Daily Beast

I was surprised to see Senate Democratic leader Chuck Schumer call on Attorney General Jeff Sessions to resign Thursday morning.

I’ve known Schumer for a long, long time and the Schumer I knew pre-Trump would probably have been more circumspect about taking that step, leaving it to some of his more liberal members who were from safe states and maybe weren’t facing their voters soon.

That he said it himself Thursday morning shows that the Democrats are turning up the heat here as much as they can.

Schumer said Sessions had tried to “dramatically mislead” Congress. He stopped an inch or two short of calling his former Senate colleague a liar, but made it clear he thought Sessions had concealed the full truth from the Judiciary Committee at his confirmation hearing. “If there was nothing wrong” with meeting Ambassador Kislyak, Schumer asked, “why didn’t he just come clean and tell the truth?”

Schumer noted that after such testimony, Cabinet nominees have an opportunity to correct the record—you know, oops, I forgot something. So Sessions could have had his staff stipulate in writing the next day that he now recalled that he did meet with Kislyak but they didn’t discuss the election campaign, and the way the Senate works it would have been a two-day story at most.

Well it’s a lot more than that now. But what Schumer said that’s far more important than calling on Sessions to resign are the three immediate steps he demanded:

1. A special prosecutor, who he noted would have to be named, under statute, by the acting deputy attorney general, Dana Boente. He was appointed by Trump after the White House fired Sally Yates over her refusal to defend the administration’s Muslim ban in court. But Boente had also been appointed to head the Eastern District of Virginia by President Obama.

2. If that doesn’t happen, Schumer said he would call on Mitch McConnell and Paul Ryan to advance legislation to “improve” the independent counsel law and to give a three-judge panel the ability to appoint a special prosecutor.

This is fascinating, given the history here. Back in the 1990s, when Bill Clinton agreed to accept an independent counsel to investigate Whitewater, the original designee, Robert Fiske, was appointed by Janet Reno. Clinton’s enemies hated Fiske, who, even though he was a Republican, kept refusing to use the office to conduct an endless witch hunt.

Reno got to make that appointment because the independent counsel law had expired. But then, facing political pressure, Clinton signed a new law that took the power to appoint a special prosecutor out of the attorney general’s hands and gave it to a three-judge panel of D.C. Circuit Court. The three-judge panel, featuring two arch-conservatives, promptly fired Fiske and replaced him with Ken Starr.

Because everybody came to see Starr’s prosecution as excessive eventually (way eventually!), the law was again allowed to expire. So today, if a D.C. Circuit three-judge panel were to name a new independent counsel, the panel would likely be drawn from the 11 “active” judges on the Circuit (there are six who still hear occasional cases but are in essence retired). Of the 11, seven are Democratic appointments (including poor old Merrick Garland). So the odds are a three-judge panel would be two-to-one liberal.

If I know this, McConnell and Ryan obviously do too, which is why this probably isn’t going anywhere, but it’s a canny move by Schumer to call for it. It will fire up liberals who were around in those days and who remain pissed off to this day at the way Starr went after Clinton, especially given that between the two of them it was finally Starr who was disgraced and chased from public life by a sex scandal.

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3. Schumer said the Justice Department Inspector General should immediately investigate Sessions’ involvement in the Russia matter so far. The current inspector general is a man named Michael Horowitz, who was appointed by President Obama. He has worked for administrations of both parties and clerked for a Ronald Reagan-appointed judge in California some years ago. On January 12, Horowitz, once worked for James Comey in New York’s Southern District, announced that the DoJ IG would be investigating the FBI director’s handling of Hillary Clinton’s emails. In January, Horowitz said that he’ll look at “allegations that Department and FBI employees improperly disclosed non-public information,” widely taken as a reference to Rudy Giuliani.

These are three smart pressure points. If Republicans try to shut down all three, the back and forth will stay in the headlines for days.

The calls for a special prosecutor will avalanche now. Republicans in the Senate who aren’t from deep-red states are going to join the call for a special prosecutor, as Ohio’s Rob Portman did shortly after Schumer spoke. Sessions will resist, and the White House will resist, but eventually, the untenable nature of their position will show up in the poll numbers, and they’ll relent.

Sessions will have to relent to have a chance of keeping his job. But this just shows why it was so corrupt for Trump to name him in the first place. It’s becoming clearer and clearer why Trump wanted an attorney general he could trust not to investigate him.