Gregg Jarrett: Sessions should resign, but not before taking action against Clinton, Comey and Rice

Jeff Sessions should never have accepted the position of Attorney General of the United States.  His leadership has proven unproductive and ineffectual. 

There are two reasons for this. 

First, he deceived President Trump by concealing his intent to recuse himself from the federal investigation into Russia’s meddling in the 2016 election.  Hours after he was sworn in, Sessions began setting his recusal in motion by meeting with Department of Justice officials to discuss stepping aside from the probe.  Failing to disclose such a material matter to the president was an egregious betrayal. 

Trump was reportedly disgusted and angry with Sessions when he learned of the recusal – rightly so.  “If he was going to recuse himself, he should have told me prior to taking office, and I would have picked someone else,” said Trump at a news conference.  The president was entitled to know the truth, but Sessions actively hid it from him.  Sessions’ deception deprived him of Trump’s confidence and trust which are essential to the job of Attorney General.  This ethical impropriety renders him unfit to serve. 

Second, Sessions appears either incapable or incompetent.  He has resisted producing the documents relevant to the anti-Trump dossier which were subpoenaed by the House Intelligence Committee.  He has failed to appoint a special counsel to reopen the case against Hillary Clinton for likely violations of the Espionage Act in the use of her email server, obstruction of justice for destroying 33,000 emails under congressional subpoena, and potential self-dealing for profit through her foundation.  The evidence is compelling.   

Moreover, Sessions has taken no action to investigate the unmasking of Trump aides during intelligence surveillance by the Obama Administration.  Evidence continues to mount that the incoming president was spied upon for political reasons.  Transition officials were unmasked, perhaps illegally.  And in one case, the unmasking was leaked to the media which is a crime.  Yet Sessions is twiddling his thumbs. 

And why hasn’t Sessions investigated the possible criminal conduct of James Comey?  The fired FBI Director appears to have falsely testified before Congress, stolen government documents, and leaked them to the media. 

Jeff Sessions may have been a fine Senator, but he has proven to be a feckless Attorney General.  He should resign.  But before he does, he can attempt to rectify the wreckage he has wrought by initiating several necessary criminal investigations and/or appointing a special counsel to do so.

James Comey

Comey was asked, under oath, by the House Judiciary Committee if he decided not to pursue criminal charges against Hillary Clinton before or after he interviewed her.  He testified, “After.” 

Yet, a document uncovered by the Senate Judiciary Committee belies his testimony.  A full two months before the FBI ever interviewed Clinton and her top aides, Comey drafted a statement exonerating Clinton.  Absent some extraordinary explanation, it appears that Comey’s investigation of Clinton was nothing more than a charade and that he may have lied under oath.  If it can be proven, it would constitute the crime of perjury under 18 USC 1621 or a false statement under 18 USC 1001.

This document establishes persuasive evidence that Comey predetermined that Clinton would not be charged.  What prosecutor writes a statement absolving a suspect before the evidence is fully gathered, especially from the principal witnesses?   No prosecutor I know of.  Unless, of course, the fix was in.  Unless someone instructed him to protect Clinton or he decided to do it all on his own with a presidential election hanging in the balance. 

Either way, it might well constitute obstruction of justice.  It is a felony to interfere with a criminal investigation.  It is also illegal to use your public office for a political purpose, if that is what Comey was doing. 

But Comey’s misconduct and potential illegality don’t stop there.  As FBI Director, he converted government documents to his own personal use and leaked at least one of them to the media.  As FBI Director, he crafted seven presidential memorandums which are government property, took them into his personal possession when he was fired, and then conveyed one or more of them to a friend for the sole purpose of leaking them to the media.  Under 18 USC 641, this could be a crime. 

Under no circumstances were these memos “personal,”, as Comey claims.  They were authored during the course and scope of his employment, composed on a government computer, shared with government employees, and pertained directly to meetings with the president that were central to his job as FBI Director. 

Under the Federal Records Act, they are government records.  This is indisputable, regardless of what Comey and his lawyers allege.  They know this because Comey signed an “Unauthorized Disclosure Agreement” promising that, under penalty of legal action, he would not disseminate workplace documents.  If the facts are as stated, he should be prosecuted under the Privacy Act.

Finally, four of the seven memos were “classified,” according to the FBI.  If Comey conveyed any of them to an outside source, this would constitute an Unauthorized Removal of Classified Documents (18 USC 1924) or a violation of the Espionage Act (18 USC 798) under which Clinton should have been charged when Comey was FBI Director.  The irony is lost on no one.  Yet, Sessions appears to have taken no action. 

Before he resigns, Sessions must open a full investigation and convene a grand jury to determine whether criminal charges should be brought against Comey.  In the alternative, he can appoint a second special counsel to investigate the case.  The current special counsel, Robert Mueller, is a long-time friend, ally and mentor to Comey.  Mueller is not likely to include Comey in his current investigation, even though he has authority to do so under the directive he received.

Hillary Clinton

The case against Clinton is, by now, self-evident.  She stored 110 emails containing classified information on her home computer server, an unsecured and unauthorized place.  It is a crime to mishandle classified information under the Espionage Act. 

Yet Comey misinterpreted the criminal statute by claiming Clinton did not “intend to violate the law.”  This is not the legal standard, as any knowledgeable lawyer will tell you.  The standard is whether she committed intentional acts, such as intentionally setting up her personal server and knowingly using it for her work documents, including classified materials.  Clinton clearly intended to do these things. 

Regardless, the law under 18 USC 793 requires only “grossly negligent” behavior.  Here, Comey insisted Clinton was “extremely careless.”  However, the two terms are synonymous under the law.  Indeed, there is a frequently used jury instruction which explains that gross negligence is extremely careless behavior.  So, in essence, Comey was admitting Clinton violated the law, although he twisted the statute to conclude otherwise.

There is strong evidence that Clinton obstructed justice.  All of her emails were under a congressional subpoena.  She was required to preserve and produce every single one of them.  She did not.  Instead, she deleted roughly 33,000 emails in defiance of the subpoena and cleansed her server of any incriminating evidence.  Destruction of evidence under a lawful subpoena constitutes obstruction.  Under the law, it is no excuse to claim that some of the emails were personal in nature. 

Growing evidence suggests that Clinton used her office as Secretary of State to confer benefits to donors and foreign governments in exchange for financial contributions to her foundation and cash to her husband.  If proven, it would support various crimes of corruption.

It has been reported that Clinton helped UBS avoid the IRS.  Thereafter, Bill Clinton got paid $1.5 million and the Clinton Foundation received a ten-fold increase in donations by the bank.  It has also been reported that Clinton’s state department approved billions of dollars in arms sales to several nations whose governments gave money to the Foundation. 

And then, there is the infamous Uranium One deal.  After the State Department under Clinton signed off on the U.S. sale of one-fifth of our nation’s uranium production capacity to the Russians, millions of dollars from Russian sources connected to the Kremlin began to flow to the Clinton Foundation, and Bill Clinton received $500,000 for a speech in Moscow.  Coincidence?  Or criminal “pay-to-play?” 

In his confirmation hearing, Sessions promised to recuse himself from any matter involving Hillary Clinton.  Therefore, before he resigns, Sessions must appoint a special counsel to reopen the Clinton investigation and decide anew whether criminal charges are merited. 

Susan Rice

In March, the former National Security Adviser to President Obama insisted she “knew nothing” about Trump transition officials swept up in surveillance at the end of the Obama administration.  Her statement was not true, and not the first time Rice conjured a false narrative.  When confronted with evidence to the contrary, she admitted she knew of the incidental collection and, further, she is the one who requested that names be unmasked.

If Rice or UN Ambassador Samantha Power or any other person requested the unmasking of names for a reason other than national security, it is a crime.  And so too is the leaking of those names to the media which clearly occurred.  Under the Hatch Act, it is against the law for a public official to use his or her office for a political purpose. 

Congress is vigorously investigating Rice and others.  Yet Sessions seems detached and unconcerned.  As the nation’s top lawyer, he is duty-bound to pursue such a substantial breach of intelligence operations. 

Before he resigns, Sessions should launch a criminal investigation into the unmasking of names or appoint a special prosecutor to do the same. 

Jeff Sessions either wittingly or unwittingly bungled his confirmation hearing, which led to the recusal that is said to have angered Trump and alienated the AG from the president.  Regardless, Sessions’ performance as Attorney General ever since has been notable only for a series of failures to act when action is demanded.

The moment the President of the United States no longer has confidence in his Attorney General, it is time for him to submit his letter of resignation.  But first, Sessions can restore integrity to the Department of Justice and salvage his own tattered reputation by taking aggressive action against Comey, Clinton and Rice. 

Then he should quietly bow out.

Gregg Jarrett is a Fox News legal analyst and former defense attorney.