In January, during the hearings to consider Donald Trump’s nomination of then Senator Jeff Sessions for Attorney General, Senator Mike Lee, the Republican of Utah, noted that whoever held that office had a good deal of “flexibility” on the matter of special prosecutors. What guidelines would Sessions follow, Lee asked, in responding to calls to appoint one? As it happens, calls of that sort have been heard loudly since Wednesday, in the wake of President Trump’s firing of the F.B.I. director, James Comey. Sessions likely had a different set of circumstance in mind back in January, although even then there were indications—hacking, Russian contacts, financial conflicts, nepotism—of the legal morass to come. Sessions ought to have known that Lee’s question was not entirely hypothetical.
“It is a matter that has created controversy over the years,” Sessions told Lee. “I don’t think it’s appropriate for the Attorney General just to willy-nilly create special prosecutors. History has not shown that has always been a smart thing to do.” But there were times, Sessions conceded, when a matter arose requiring objectivity, or at least “the absolute appearance of objectivity,” to an extent that made a special prosecutor appropriate. He had one particular time in mind. “Attorney General Lynch, for example, did not appoint a special prosecutor on the Clinton matter. I did criticize that. I was a politician. We had a campaign on. I didn’t research the law in depth. Just the reaction, as a senator, of concern.”
It was, in some ways, a jarringly forthright answer, one that illuminates the role that Sessions played in the drama surrounding Comey’s dismissal—an event that suggests, as strongly as anything could, the need for a special prosecutor. As a senator, Sessions had called for a special prosecutor when it was politically expedient to do so. On the campaign trail, he had said whatever he needed to. And, as the Attorney General, he composed a cover letter for another letter that his deputy, Rod Rosenstein, had written, cataloguing Comey’s wrongs; Sessions had then recommended a change of leadership at the Bureau. As of Wednesday afternoon, it still wasn’t clear whose idea it was for the two men to review Comey’s performance, or whether Trump really wanted their opinions or had just asked them to give him the letters so that he would have something to wave at the press. Rosenstein’s letter said that Comey had mishandled the investigation of Hillary Clinton’s e-mails; another explanation for his firing, though, and one with more evidence to support it, is that Trump may have come to fear the breadth of the F.B.I. investigation into his campaign’s and his associates’ Russian connections. (There were reports that, earlier this week, Comey had asked for more legal tools and a bigger budget to pursue it.) Comey’s dismissal will certainly affect that investigation, which is why another question, from Senator Chuck Schumer, the Minority Leader, was this: How was Sessions, “who had recused himself from the Russia investigation, able to influence the firing of the man conducting the Russia investigation?” That recusal, after all, came as the result of the revelation that Sessions, during his confirmation hearings, had not told the truth about his meetings with Russians.
We already have an answer to the question of how much Sessions cares about safeguarding the dignity of his office or the integrity of his mandate: not much. He defended Trump’s call for a ban on Muslims entering the United States even before it was dressed up as a supposedly national-security-oriented executive order. Last month, he expressed amazement that “a judge on an island in the Pacific”—that is, in a federal court in Hawaii—could stop the President from issuing another iteration of that order, or, for that matter, could stop him from doing anything. After pretty much everybody in Hawaii protested, Sessions said that he had been joking, which is also how he has explained certain racist remarks attributed to him. He has always been a Trump true believer. At campaign rallies, Sessions smiled when the crowd chanted, about Clinton, “Lock her up!”—though, at his confirmation hearings, he said that he couldn’t remember whether he joined in. Anyone looking for an official who will throw himself in the way of a Presidential action, even one that threatens the Constitution, can skip the Attorney General’s office.
It may seem to some Clinton supporters as though the President has reason to be grateful to Comey for having announced, a week and a half before the election, that the e-mail investigation was being revived. In the alternative world of Fox News and Trump tweets, however, the narrative has remained that Clinton should have been prosecuted. For those who believe that Hillary got off easy, the big news coming out of Comey’s congressional appearance last week was his comment about Huma Abedin forwarding some of Clinton’s e-mails to Anthony Weiner. (As it turns out, Comey vastly overstated the number of such e-mails, and the F.B.I. corrected his testimony.) But Administration officials apparently thought that, since everyone seemed to have a reason to be angry with Comey, they could do what they wanted with him—even though he was the F.B.I. director and was investigating people connected to the White House, and even though there is such a thing as obstruction of justice. By all accounts, the White House was generally surprised by the outraged reaction—which came not only from Democrats.
Those expectations were based on a bully’s logic: if you beat up on the unpopular kid, no one will call you on it, no matter the right or wrong of the matter. And this is a bully’s Administration. With Trump, and with the Cabinet members like Sessions who help him along, one can focus on the absurd and miss the vicious. But the calls for a special prosecutor won’t stop, and Sessions will have to decide where he stands, and how publicly shameless he is willing to be. As Senator Lee reminded him, an Attorney General has a lot of options.