I’ve spent much of the last decade prosecuting or defending people charged with all manner of crimes. And it has always amazed me how often people talk themselves into trouble by trying to talk themselves out of it. Atty. Gen. Jeff Sessions is a good example. Like a lot of my clients, he talked himself into trouble, then tried to talk himself out of it and could never bring himself to just shut up.
Sessions’ trouble started at his confirmation hearing in January, when Sen. Al Franken asked him what he would do as attorney general if he were to learn that there had been communications between the Trump campaign and Russia? That was a softball. Sessions could have said, “I’d let the investigation go where the facts lead,” and been done with it. Franken wasn’t even asking Sessions whether he, Sessions, had had communications with Russians.
But Sessions couldn’t help himself. He had to blurt out: “I have been called a surrogate a time or two in that campaign and I did not have communications with the Russians.” Answering a question he wasn’t asked, volunteering more information than necessary and saying something provably false to boot? That’s the trifecta of criminal-suspect rookie mistakes.
I surmise that Sessions was feeling invincible at his confirmation hearing, flush with the glow of his new appointment. You even see a little grin pop up on his face when you watch the video. But not after that answer. Sessions knew he’d stepped in it. You can see it in his sideways glances and bulging eyes immediately after he uttered the words.
So there he was again this week, back before his old colleagues for a little follow-up testimony. This time he was lawyered up and fully aware that he’s not invincible and there are real legal consequences to saying the wrong thing … and he still couldn’t keep his mouth shut.
In a nutshell, Sessions insisted Tuesday that he had done nothing wrong, and readily disclosed facts about White House and Justice Department conversations that buttressed his story. But he adamantly refused to answer questions that might undermine his story — questions, for example, about whether administration officials had discussed issuing pardons to any of the targets of the Russia investigation. And he declined to invoke the legal doctrine known as “executive privilege,” implying that the president ordered him not to: “I’m not able to invoke executive privilege. That’s the president’s prerogative.”
Sessions’ selective disclosures were another classic criminal-suspect rookie mistake. Defendants always want to do this. But when you make selective exculpatory statements within the scope of a privilege, but then try to withhold inculpatory information by invoking that privilege, guess what happens? You lose the whole privilege.
Here’s the formulation used most often by courts: “Disclosure of any significant portion of a confidential communication waives the privilege as to the whole.” This is one of many “don’t get cute” rules in criminal procedure. (Another variant: If you’re a criminal defendant, you don’t have to testify at your trial. But if you do testify, you don’t get to take the stand, make a passionate statement accusing the prosecution of “scurrilous and detestable lies” and then refuse to answer questions on cross-examination.)
And Sessions really screwed up. In answer to questions from Sen. Dianne Feinstein, he testified that he had talked with Deputy Atty. Gen. Rod Rosenstein about firing James B. Comey as FBI director because the latter made public statements about the Clinton email investigation last July. Yet in practically the same breath, he refused to answer questions about whether he’d ever discussed Comey with Trump, or what Trump had said about Comey.
The law does not allow him to pick and choose. When your run-of-the mill white-collar perp discloses an email from his attorney in an attempt to blame his crimes on his lawyer — the “advice of counsel” defense — he thereby opens the door to all the rest of his legal communications, including the urgent memo that says, in bold-faced type, “Don’t trade on that proprietary information; it would be illegal.”
If this administration wanted to take the position that it doesn’t have to tell Congress about its high-level internal deliberations, it could have done so. And then, ultimately, when special counsel Robert S. Mueller III started issuing subpoenas for grand jury testimony, the courts would decide the question. (Granted, the administration would likely lose. The governing precedent is United States vs. Nixon, which effectively ended Nixon’s presidency when the Supreme Court held unanimously that the president’s “generalized interest in confidentiality … cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”)
But it appears that Sessions, like his boss, and like so many of us, can’t help himself. The basic human urge to talk, burned into our evolutionary forebears around their hunter-gatherer campfires a million years ago on the savannah, or something, is strong. We think we can talk our way out of trouble. And it’s my job to tell you the cold, hard truth: You can’t.
Caleb Mason is a partner at Brown White & Osborn LLP in Los Angeles and a former federal prosecutor.
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