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November 13, 2017

When Attorney General Jeff Sessions testifies before the House Judiciary Committee Tuesday, he will face questioning on the Uranium One deal. As Special Counsel Robert Mueller’s investigation has intensified, President Donald Trump and some congressional Republicans, including Senate Judiciary Committee Chairman Sen. Chuck Grassley (R-Iowa), have called on Sessions to investigate Hillary Clinton’s role in what they contend is the real Russia collusion scandal. The 2010 deal allowed Russian state-owned firm Rosatom to obtain a majority stake in Canada’s Uranium One, which owned about 20 percent of U.S. uranium recovery production. A New York Times investigative report found that a Uranium One official donated to the Clinton Foundation before and after the 2010 sale.

But if Sessions were to launch a Uranium One investigation, that might violate the promise he made during his Senate confirmation hearings to recuse himself from Clinton Foundation-related matters, if not his official statement of recusal from all 2016 election-related matters. Important to consider here is that the scope of Sessions’ promise to recuse himself, which he made during his confirmation hearing in January, was broader in part and narrower in part than the scope of his actual recusal in March. Violating any of those commitments would be a major breach of Sessions’ relationship to the Congress, his department, and the public.

I. Sessions’ Vows to Recuse From Clinton Campaign-Related and 2016 Election-Related Matters

At Sessions’ January confirmation hearing, Grassley asked him:

GRASSLEY: During the course of the presidential campaign, you made a number of statements about the investigation of former Secretary of State Hillary Clinton, relating to her handling of sensitive emails and regarding certain actions of the Clinton Foundation. You weren’t alone in that criticism.

I was certainly critical in the same way as were millions of Americans on those matters, but now, you’ve been nominated to serve as attorney general. In light of those comments that you made, some have expressed concerns about whether you can approach the Clinton matter impartially in both fact and appearance. How do you plan to address those concerns?

SESSIONS: Mr. Chairman, it was a highly contentious campaign. I, like a lot of people, made comments about the issues in that campaign. With regard to Secretary Clinton and some of the comments I made, I do believe that that could place my objectivity in question. I’ve given that thought.

I believe the proper thing for me to do, would be to recuse myself from any questions involving those kinds of investigations that involve Secretary Clinton and that were raised during the campaign or to be otherwise connected to it.

GRASSLEY: OK. I think, that’s — let me emphasize then with a follow up question. To be very clear, you intend to recuse yourself from both the Clinton email investigation and any matters involving the Clinton Foundation, if there are any?

SESSIONS: Yes.

Grassley asked again whether Sessions was promising to formally recuse himself from any Clinton Foundation-related matters, and Sessions vowed that he would:

GRASSLEY: Let me follow up again, because it’s important. When you say you’ll recuse, you mean that you’ll actually recuse and the decision will therefore fall to, I assume, a deputy attorney general? I ask because after Attorney General Lynch met with President Clinton in Phoenix, she said she would, quote/unquote, “defer to the FBI,” but she never officially recused.

SESSIONS: No, she did not officially recuse. And there is a procedure for that, which I would follow. And I believe that would be the best approach for the country because we can never have a political dispute turn into a criminal dispute. That’s not in any way that would suggest anything other than absolute objectivity. This country does not punish its political enemies, but this country ensures that no one is above the law.

But when Sessions formally recused himself in March from “any matters related in any way” to the 2016 presidential campaigns, he used language that was broader in part, encompassing both presidential campaigns, but narrower in part, because it was limited to 2016 election-related matters. That narrowness allows him room to open a Uranium One investigation without violating the text of his recusal, because the events giving rise to the Uranium One controversy began in 2009 and do not necessarily implicate the 2016 election. Here is how Sessions described his formal recusal decision in March:

“During the course of the last several weeks, I have met with the relevant senior career Department officials to discuss whether I should recuse myself from any matters arising from the campaigns for President of the United States.

“Having concluded those meetings today, I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.

“I have taken no actions regarding any such matters, to the extent they exist.

There have been conflicting reports in the right-wing and alt-right media as to what Sessions has told lawmakers in private about his recusal of matters related to Uranium One. While these media sources’ editorial stances may shade their news reporting, it is their disagreements over what Sessions did or did not privately say to lawmakers that is revealing.

Rep. Matt Gaetz (R-Fla.) apparently said to Breitbart News on Nov. 2 that Sessions told a group of House Judiciary Committee Republicans in September that he was recused from appointing a Special Counsel to look into the Uranium One deal. When asked about the possibility of appointing such a counsel, Breitbart reports that Sessions announced that he was recused from discussing the matter, got up, and left the room. Gaetz added: “He said that anything that had to do with 2016 election, or Russia, or the candidates in the 2016 election, fell under the scope of his recusal, and he left the room…It was Sessions’ position that his recusal on the Russia matter divorced him from any oversight on Uranium One and Fusion GPS…”

In sharp disagreement, the conservative/right-wing Washington Free Beacon reported on Nov. 3 that “DOJ sources” had informed them that Sessions had not recused himself from investigating reports on the Obama administration’s approval of the 2010 deal. Likewise, Fox News’ Sean Hannity reported that “multiple DOJ sources” had confirmed that Sessions did not recuse himself from any potential Uranium One investigation that same day.

Sessions himself offered what might be considered inconsistent public answers in an Oct. 26 interview with radio show host Hugh Hewitt, saying that he had not made a formal statement on the Uranium One investigation, but adding that he was recused from any investigations into the Clinton Foundation:

HEWITT: …A couple of other issues I want to run through with you, Mr. Attorney General. I know you’re recused from most of the Russia stuff. But are you recused from the investigation into the Steele dossier and GPS Fusion?

SESSIONS: Well, I have not made a formal announcement on what kind of recusal I might have there. But I could well be, and so…

HEWITT: How about the Uranium One case. Are you recused from that?

SESSIONS: Well, the, you know, of course there was one case that’s already been prosecuted, and people have been sentenced on, but as to what may happen after that, if anything, I’m not able to comment.

HEWITT: And are you recused from any investigations into the Clinton Foundation?

SESIONS: Um…Yes.

In short, although Sessions publicly vowed to recuse himself from Clinton Foundation-related matters, the text of his official recusal, technically speaking, suggests his March recusal left room to investigate the Uranium One deal. That said, allegations of pay-for-play involving the Clinton Foundations were a part of the election season as well. Thus, Sessions’ March statement—that he is recused from “any matters related in any way to the campaigns for President of the United States”—quite plausibly includes any specific allegations of pay-for-play involving the Foundation as well, even if they occurred prior to the election.

II. Trump and Some Congressional Republicans Push to Investigate Clinton, Sessions Changes Course

Initially, Sessions’ recusals did not seem to pose a problem with respect to a potential Clinton investigation, because there was no pressure from Trump in that regard. Two weeks after the 2016 election, Trump insisted that he did not want to push for Clinton’s prosecution over matters related to Clinton Foundation finances or over Clinton’s use of a private email server. He told the New York Times: “I don’t want to hurt the Clintons, I really don’t.”

But as Trump became upset with Sessions for recusing himself from the Russia investigation in July, he began calling for Sessions to investigate Clinton (although in this case he was calling for an investigation into reported Ukrainian assistance to the Clinton campaign):

The pressure Trump and some congressional Republicans put on Sessions to investigate Clinton began to intensify, however, as Mueller’s Russia investigation prepared to issue its first criminal indictment. Republican leaders on Capitol Hill and in the media began talking up a parallel Russia scandal related to Clinton and Uranium One.

On Oct. 24, CNN reported that House Republicans were launching a congressional investigation into how the Obama Justice Department handled the Uranium One deal, and Russian attempts to gain influence over the U.S. uranium industry generally. House Intelligence Committee Chairman Rep. Devin Nunes (R-Calif.) and House Oversight Committee Chairman Rep. Trey Gowdy (R-S.C.) are leading the probe. Similarly, the Washington Post reported that House Republicans on the Oversight and Judiciary Committees were also launching an investigation into Clinton’s use of a private email server.

Acting in accord with congressional Republicans, Trump reportedly ordered White House senior officials to facilitate the Justice Department’s lifting of a non-disclosure agreement preventing an informant from speaking to Congress. The informant had played a key role in the FBI’s investigation on Russian attempts to gain influence over the U.S. uranium industry during the Obama administration, including the Uranium One deal. White House counsel Don McGahn reportedly communicated the request to the DOJ. CNN’s report noted: “The Justice Department has strict rules limiting the White House’s involvement in criminal law enforcement matters. Any involvement by the White House counsel in the decision is unusual, particularly because it relates to the President’s political opponents.”

Politico reported the same day that Sessions praised the lifting of the DOJ nondisclosure agreement, adding: “[…] I think it’s a good thing that it’s worked out and I’m very pleased about it.” He refused to address whether Trump ordered the DOJ to lift the agreement, saying he was “not aware of any such communications.” Sessions’ praising the action suggests he did not at the time consider the issue within the scope of his recusal, or that he had violated the scope of the recusal.

In response to the Oct. 30 unsealing of Mueller’s indictments of former Trump campaign chairman Paul Manafort and business associate Rick Gates, as well as George Papadopoulos’ criminal plea, Trump intensified his public calls for a Clinton investigation:

Trump likewise told conservative radio host Larry O’Connor that the Justice Department wasn’t doing what he wanted it to do:

But you know, the saddest thing is, because I am the President of the United States, I am not supposed to be involved with the Justice Department. I’m not supposed to be involved with the FBI. I’m not supposed to be doing the kind of things I would love to be doing and I am very frustrated by it. I look at what’s happening with the Justice Department, why aren’t they going after Hillary Clinton with her emails and with her dossier, and the kind of money… I don’t know, is it possible that they paid $12.4 million for the dossier…which is total phony, fake, fraud and how is it used? It’s very discouraging to me. I’ll be honest, I’m very unhappy with it, that the Justice Department isn’t going…maybe they are but you know as President, and I think you understand this, as a President you’re not supposed to be involved in that process. But hopefully they are doing something and at some point, maybe we are going to all have it out.

If Sessions opens a Uranium One investigation in the days to come, the ambiguous language of his official recusal in March may allow him to do so, so long as his investigation does not implicate the 2016 election. That may happen in spite of Sessions’ promises to Sen. Grassley at his confirmation hearing, particularly considering Grassley is now one of the leading Republicans calling for such an investigation. Other members of the Judiciary Committee, however, may well say that Sessions’ promise was to them as well and an implicit condition for his confirmation.

[Editor’s Note: For more analysis, readers may be interested in Paul Rosenzweig’s excellent legal backgrounder on the CFIUS approval process at Lawfare: “Unpacking Uranium One: Hype and Law”]

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