Jeff Sessions should resign – whether or not he committed the crime of perjury.
The Washington Post reported Wednesday that Attorney General Jeff Sessions made inaccurate statements under oath about his contacts with Russian officials in his confirmation hearing. Asked what he would do if he learned of contacts between the Trump campaign and the Russian government, Sessions volunteered, "I have been called a surrogate at a time or two in that campaign, and I did not have communications with the Russians." Asked directly in a written questionnaire whether he had ever been in contact with anyone connected to the Russian government about the election, he was unequivocal: "No."
Sessions first responded to the revelations that he had in fact twice met with the Russian ambassador to the United States with a legalistic attack on a straw man, claiming, "I never met with any Russian officials to discuss the issues of the campaign. I have no idea what this allegation is about." But the allegation isn't that he convened a meeting specifically to discuss the campaign with the Russians. The allegation is that his sworn statement – "I did not have communications with the Russians" – was false. The written questionnaire asked specifically if he'd had contact "about the 2016 election," so his denial would have been misleading but true in the narrowest sense if he had met with Russian officials but not discussed the election. According to an anonymous Sessions defender at the Department of Justice, he just doesn't remember what was discussed – though the meeting occurred in September, when Russian interference in the election was dominating the news, and according to an anonymous Trump official the election was indeed a topic of conversation, if a "superficial" one.
Sessions said Thursday afternoon that he is recusing himself from investigations relating to the election, which one assumes would apply to any probes into Russia's election interference and contacts with the Trump campaign. However, it was already clear – independent of these revelations – that Sessions needed to step aside. To admit now that Sessions can't investigate himself is to state the obvious. Sessions can't run this investigation, and neither can anyone else at the DOJ after Sessions' recusal, because Trump would have the power to fire that person. A special counsel needs to be appointed.
Attorney General Jeff Sessions recuses himself from investigations relating to the election. Watch here.
But that won't solve the larger problem. Sessions' violation of his ethical obligations as a lawyer make him unfit to serve as attorney general. Some commentators are alleging that Sessions committed perjury, but because the crime entails intentional deception, an investigation would be necessary to convict him. Interviews with the staffers who prepared his testimony might indeed provide evidence that he lied – rather than merely forgot or misspoke – if, for example, they discussed his meetings with the Russians. But whether it can be proven Sessions committed perjury isn't the test – the rules of professional responsibility for lawyers set higher standards for their conduct.
Under the relevant rule on "maintaining the integrity of the profession" in Alabama, where Sessions is barred, "dishonesty, fraud, deceit or misrepresentation" and other "conduct that is prejudicial to the administration of justice" constitute professional misconduct.
Sessions isn't alone among lawyers in the Trump administration who don't appear to take their ethical responsibilities seriously. A group of law professors who specialize in legal ethics filed a complaint with the D.C. bar last month concerning the multiple false statements Trump counselor Kellyanne Conway has made to the public. EPA Administrator Scott Pruitt apparently made multiple false statements in his confirmation hearing. And White House Counsel Don McGahn let Trump declare McGahn had determined Michael Flynn had not committed a crime when he couldn't possibly have known that.
But Sessions' behavior is most concerning given the position he holds as our nation's top lawyer. Even if he somehow genuinely misunderstood the questions he was asked, or forgot meeting the ambassador or what they discussed – which would raise additional concerns about his competence – Sessions' false statements are disqualifying, regardless of his intent.
"There is no question in my mind" that Sessions should resign, Fordham Law professor Russell Pearce, a revered expert in legal ethics and one of the signers of the complaint against Conway, tells Rolling Stone. "The attorney general of the United States should be above any appearance of impropriety."
Asked what it would mean for the legal profession if an ethics complaint like the one against Conway is made and the bar does nothing, Pearce says, "If the disciplinary authorities ignore this, shame on them. They make a mockery of our ethics rules if they don't apply to the attorney general of the United States."
Indeed, if Congress is too spineless or the Justice Department too compromised to investigate allegations of perjury from our highest officials, the bar may be the only guardians of the truth we have left.