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Calls for Sessions to Recuse Himself. Aired 9-9:30a ET

Aired March 2, 2017 - 09:00   ET




JOHN BERMAN, CNN ANCHOR: Good morning, everyone. I'm John Berman.

POPPY HARLOW, CNN ANCHOR: I'm Poppy Harlow. So glad you're with us.

We have a lot of news this morning, just breaking this morning, calls to recuse or resign. Moments ago, senior Republicans saying that the Republican attorney general should recuse himself from investigations into the Trump campaign contacts with Russia.

Senior Democrats say he should flat-out resign. House Oversight Committee chairman Republican Jason Chaffetz just tweeting moments ago, "AG Sessions should clarify his testimony and recuse himself."

So the issue here is the facts.

What did Jeff Sessions do?

Did he tell the truth under oath about what he did?

And do the facts about what he did and said compromise his authority as the nation's chief law enforcement officer?

BERMAN: This morning CNN has learned that Jeff Sessions, who was a U.S. senator and Trump campaign supporter, in fact the chairman of that campaign's national security committee, he met twice last year with the ambassador to Russia.

Now why might this matter?

Well, because of the Russian meddling in the U.S. election, because of our reports about repeated contacts between Trump associates and Russian officials and because then-Senator Sessions under oath said he was not part of it.


SEN. AL FRANKEN (D), MINN.: And if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?

SEN. JEFF SESSIONS (R), ALA.: Senator Franken, I'm not aware of any of those activities. I have been called a surrogate at a time or two in that campaign. And I didn't have -- not have communications with the Russians.


BERMAN: "I did not have communications with the Russians," he said then. Well, now we know he did have communications with the Russian ambassador. But a short time ago, he defended this sworn testimony.


SESSIONS: Well, I have not met with any Russians at any time to discuss any political campaign and those remarks are unbelievable to me and are false. And I don't have anything else to say about that.

QUESTION: What about the calls to recuse yourself from the -- your agency's probe of the --


SESSIONS: Well, I've said, whenever it's appropriate, I will recuse myself. There's no doubt about that.


BERMAN: "When it's appropriate, I will recuse myself."

Stay tuned for developments on that. We have developments breaking all over the world right now, from the Justice Department to the capital of Moscow. Let's begin with our reporter, Laura Jarrett, from the Justice Department.

Laura, what are the facts here?

LAURA JARRETT, CNN JUSTICE CORRESPONDENT: So the attorney general seems to want to draw a line now between conversations he had with his senator hat on and those as a campaign surrogate.

But the real issue here is transparency at this point. In his Judiciary Committee questionnaire earlier this year, Senator Patrick Leahy wrote, quote, "several of the president-elect's nominees or senior advisers have Russian ties.

"Have you been in contact with anyone connected to any part of the Russian government about the 2016 election either before or after Election Day?"

And Sessions' response was no.

Now the White House says that Sessions' answers on these were consistent and truthful because he wasn't acting as a Trump surrogate. And this is just the latest attacks of the White House against the Trump administration bipartisan Democrats.

But, of course, the chorus of voices calling for Sessions to step aside today is growing louder every minute -- and with Republicans as well. This as we are also learning from "The New York Times" last night that

the Obama administration, in the waning days, sought to distribute widely information about Russian hacking into the election. So there are a lot of moving pieces here -- Poppy, John.

HARLOW: There are indeed. Laura Jarrett, stay with us. We have a lot to break down but we do want to get straight to Capitol Hill for the reaction from there. That's where Sunlen Serfaty is.

Look, this is not just split along party lines anymore. This is not just Democrats calling for him to recuse or resign. This is from top Republicans.

SUNLEN SERFATY, CNN CORRESPONDENT: That's right, Poppy. Very swift reaction up here on Capitol Hill from both Democrats and notably many Republicans, who are now calling for Sessions to recuse himself.

You have many Democrats, too, a growing number of Democrats asking for him and calling for him to resign, including just the latest, Senator Claire McCaskill, who also earlier this morning essentially called out Jeff Sessions for his defense, saying that these communications happened in his capacity on the Senate Armed Services Committee, McCaskill tweeting, "I've been on the Armed Services Committee for 10 years. No call or meeting with Russian ambassador ever. Ambassadors call members of Foreign Relations Committee."


SERFATY: As you noted earlier, a top Republican, Jason Chaffetz, tweeting out moments ago, "AG Sessions should clarify his testimony and recuse himself."

And we just heard in the last few minutes on CNN, Senator Franken. He of course was the senator who was at the confirmation hearing when Sessions was having the hearing for attorney general.

And he questioned him, asking him if there were any contacts. Well, this morning Senator Franken saying that his answer then was misleading at best.


SEN. AL FRANKEN (D), MINN.: At the very least, this was extremely misleading. I don't -- I would love for him -- I'm going to be sending him a letter to have him explain himself.

But he made a bald statement that, during the campaign, he had not met with the Russians. That's not true; whether he, in his head, thought that he was answering whether he had talked to any Russians about the campaign, then he should have said so.

He should have said I met with the Russian ambassador a couple times but we didn't discuss the campaign.

(END VIDEO CLIP) SERFATY: There will be a lot of action up here on Capitol Hill. Within the next hour, we will hear from Nancy Pelosi, who has already called for Sessions' resignation. We'll also hear from Senator Chuck Schumer at a press conference in just about an hour. Very clear, Poppy and John, Democrats are keeping up the pressure.

BERMAN: You know, we'll hear from Pat Leahy, a senior Democrat in the Judiciary Committee in just a few minutes and we'll get a changes to ask him, do you feel that Jeff Sessions lied to you in that committee?

Sunlen Serfaty on Capitol Hill, thanks so much.

And of course, Kevin McCarthy and Jason Chaffetz now calling for recusal. Unlikely that that would happen if it wasn't already in the works. So stay tuned. That could happen at any minute.

Meanwhile, Russia says that, when it comes to all this controversy about the meetings with the Russian ambassador, this is not their headache. But keep this in mind.

According to former U.S. officials, U.S. intelligence considers the Russian ambassador Kislyak one of Russia's top spies and spy recruiters.

We'll bring in CNN's international diplomatic editor Nic Robertson, who is in Moscow.

Nic, what is Russia saying right now about all this?

NIC ROBERTSON, CNN INTERNATIONAL DIPLOMATIC EDITOR: Well, they're pushing back really hard, they're saying essentially that this is misinformation by the media. They're calling it media vandalism, this is coming from the spokeswoman at the foreign ministry, Maria Sakharov (ph).

She has said that how low can the media go?

She said we used to talk about propaganda, then hype. But she says this is a situation now where -- and she's aiming this directly at CNN -- where she is saying that this is the media, the Western media is becoming Big Brother, as in George Orwell's 1982 -- I say '82, because that's what she said. We believe she means his book "1984."

But her point being is the media is to blame on this. She's also pointed out that Russian diplomats, this is their job, ambassadors around the world, this is their job to meet with people.

So from the Russian point of view, this is a very robust defense of their position. They see this as an American problem. The spokesman for Vladimir Putin, Dmitry Peskov, has said today that this is something that is an emotionally charged environment inside Washington at the moment.

There's a real sense here in Moscow that this is something that the United States needs to sort out amongst its own politicians and diplomats and not involve Russia. There's a sense here that any possibility of a renewed relationship between the United States and Russia is really being washed away at this time.

So a great deal of consternation and specific anger being fired at those who would accuse the Russian ambassador in Washington of being a spy -- Poppy, John.

HARLOW: Nic Robertson for us in Moscow, thank you, Nic, very much.

Let's bring in our panel to discuss. Doug Heye is with us, a CNN political commentator and a Republican strategist. Also joining us in a moment will be Brian Fallon, our political commentator and former press secretary for Hillary Clinton.

Also still with us is our Justice reporter, Laura Jarrett.

Let me begin with you, Doug. The highest ranking Republican yet to reply this morning, Kevin McCarthy. Here is how he put it.


REP. KEVIN MCCARTHY (R), MAJORITY LEADER: I think the trust of the American people, you recuse yourself in these situations.

MARK HALPERIN, BLOOMBERG TV HOST: You should -- you said you would urge him to --


MCCARTHY: I think it's --

HALPERIN: -- recuse himself?

MCCARTHY: -- I don't have all the information in front of me. I don't want to prejudge. But I just think for any investigation going forward, you want to make sure everybody trusts the investigation come, there's no doubt within the investigation --


HALPERIN: Does that require -- does that require his recusal, Congressman?

MCCARTHY: I think it would be easier from that standpoint, yes.


HARLOW: "I think it would be easier from that standpoint, yes."

Two-fold question: one, Doug, would he be calling for that, were a recusal not in the works?

And, two, can Republicans on the Hill afford not to call for recusal at this point?


DOUG HEYE, CNN POLITICAL COMMENTATOR: On the first point, we just don't know yet. The story obviously broke late yesterday. We don't know enough information. I think that's one of the things that Kevin McCarthy wanted to get, was more information.

But given his comments and Jason Chaffetz's comments, I think it's clear that more and more Republicans will be out there calling for that.

And one of the reasons to your second question is, when you talk to congressional Republicans, as I do every day, there's a constant yin and yang between where they stand on Trump.

If we're having a conversation -- just yesterday, Poppy, we're talking about Donald Trump's speech, how well he did, how he defied expectations and is this a pivot and so forth.

Now we're talking about whether or not the attorney general needs to recuse himself. We've seen this time and time again with Trump, where they have one day of good news but at the end of the day we get bad news.

It's why congressional Republicans in the House and the Senate are always nervous. There's a constant tension because when they see good news, they worry that bad news is just around the corner.

BERMAN: Look at the number two member of the House, Republican member is calling for recusal before 9:00 am in the morning. I don't know that it can last much past noon. So we will continue to watch that.

Brian Fallon, of course, former spokesman for the Hillary Clinton campaign, but before that, at the Justice Department. So you have some connections here to this.

In your mind, I suppose as a Democrat, not as a Justice Department former spokesman, is recusal enough here for the attorney general?

BRIAN FALLON, CNN POLITICAL COMMENTATOR: Well, first of all, I think he needs to take the step of recusing himself. As of this morning, he was still dodging that question and according to "The Wall Street Journal" he's under investigation himself, these contacts that he had with the Russian ambassador are themselves being looked at by the FBI.

So I think there was a sufficient basis for him to need to recuse himself before, based on the role he had in the Trump campaign. But now that he's actually one of the subjects of the review that's being conducted by the FBI, he can't possibly stay atop that investigation.

So I think recusal is a matter of hours, not a question of if any longer. And so then the larger question becomes, potential criminal conduct here. You know, Jeff Sessions in the late 1990s, when the issue was Bill Clinton, was very clear; that perjury is a basis to have to step down and leave your office.

And I think there's going to be increasing calls, for not just Jeff Sessions to recuse himself but for him to step down from his position. It was a pretty black-and-white question that was posed to him. He answered it definitively. Usually in these circumstances, you'd see him or a representative for

him try to claim that he didn't remember the meeting because the perjury statute actually involves a willfulness standard.

But here, they're acknowledging that he full well remembered the meetings and they're just trying to claim that it was still not a pertinent thing for him to have to mention. That's pretty choppy waters for him legally. I think there's a clear perjury charge to be filed here.

I would look for the Democrats on the committee to try to force Chuck Grassley's hand to make a referral on the perjury charge to the U.S. attorney in the District of Columbia. And then I think he's going to have to retain private counsel because this was a conversation that he had in a hearing before he was actually confirmed.

This is not an official Justice Department function. I think he's in legal hot water right now.

BERMAN: I just want to make one point. CNN is not reporting what "The Wall Street Journal" is on the fact that Sessions is under investigation or was investigated by federal officials.

I just want to make that point there.

HARLOW: It's important. We don't have that yet.

Laura, so here are the facts. What we do know is Attorney General Sessions had these two meetings in July and September. His own Justice Department says it. And we know one of them was totally in private. So no one else was there with the Russian ambassador.

So we also know that, right now, contact, alleged contact between Trump advisers and the campaign and Russia is being investigated.

So there is actually no question that Sessions would have to be a witness in his own investigation, correct?

And if that's the case, then how can he investigate it?

So if he recuses himself, who does it, who leads?

JARRETT: Well, that's a really interesting observation, Poppy. If he decides to step aside, there is a mechanism here for the acting deputy attorney general, Dana Boente, to come in and step in and take over this investigation and Sessions can step aside without having to resign or anything like that. There is precedent for that.

There's history. The Attorney General Holder did that, Mukasey did that. So there's a mechanism to do that. But it's really going to be up to Sessions at this point because there is no longer the independent counsel statute which would have helped Congress prompt this.

And so it's really going to be up to him on the timing for moving something like that forward. BERMAN: Doug, just to be clear, what's the political cost at this point?

It seems like that's a relatively easy move to make at this point, say, you know what?

It's just too murky right now, there's just too much smoke here, I shouldn't be involved.

HEYE: I think the political loss is massive for not just the attorney general but the entire administration. Again, just yesterday, we were talking about Donald Trump potentially turning a corner, pivoting, what a great night it was for him.

We're not talking about that anymore. And we know, as we go further down the line, Democrats will continue to talk about this, not just Al Franken and Patrick Leahy. Nancy Pelosi has weighed in. They're going to ride this as far as they can.

And since we're seeing Republicans already begin to crack, Kevin McCarthy and Jason Chaffetz, there's real concern that more Republicans will and the cost will be massive.

HARLOW: So, Brian, I mean, just to be clear for the viewers, senators meet with ambassadors, they do. And that's sort of part of Sessions' defense in what he's saying here. The difference here, though, is it not, the timing, especially the second meeting, especially the September meeting because that was at the height of the investigation -- sorry -- at the height of the concern --

JOHN BERMAN, CNN ANCHOR: After the hacks of the DNC, to be sure.

HARLOW: Right. The concern about how much Russia was trying to tip the scales in the election. How much is timing a factor here, not just the fact that there was this meeting?

BRIAN FALLON, CNN POLITICAL COMMENTATOR: So, timing is a factor. I also think it's a factor that, look, while it may be not unusual for certain senators to meet with foreign ambassadors, it's actually unusual for them to do so based on their assignment on the Senate Armed Services Committee, which is the panel on which Jeff Sessions serves.

You know, "The Washington Post" which broke this story actually surveyed the other members of the committee. No other committee members met with the Russian ambassador even once in their duties as a representative on the Senate Armed Services Committee. He met with this representative from Russia twice.

HARLOW: Just to clarify, Brian -- 26 of those members, 20 of them got back to "the Washington Post" said they didn't meet. Six of them did not respond. So, we just can't be positive, but I hear your point.

FALLON: That includes the chairman of the committee, John McCain. So, you would have thought if the panel had business that would have necessitated a meeting with the Russian ambassador, at least you would have seen a meeting happen at the level of the chairman of the committee.

It's quite interesting when you have all these rumors swirling about, connections between the Trump campaign and the Russian government, the only member of the panel meeting with the Russian government is Jeff Sessions.

Secondly, they changed their story in the last few hours since the story initially broke. The Jeff Sessions spokesperson has changed the story about what exactly was discussed. Initially, they said he couldn't remember what was discussed in the September conversation. Then the administration official put out a quote late last night on background saying they did discuss the election, but it was perfunctory, it was just in passing.

And now, this morning, Jeff Sessions is suddenly remembering everything and saying he didn't talk about the election. So, the changing story is another basis to question this. And, lastly, he was not just asked about it once in the open hearing by Senator Franken. He was asked about contacts between himself and the Russian government in writing subsequently by Senator Leahy and he misled the committee again twice.


BERMAN: Hang on, Brian. There's a slight difference with the Leahy question. The Leahy question was specifically about campaign issues in writing. That was a direct question about campaign issues. So, I can understand deniability --


FALLON: John, anyone advising Senator Sessions as he was going through his confirmation process would have advised him to take that opportunity to clarify the record from his previous congressional testimony. That was a free pass to clean that up. He chose not to do so which is reason for suspicion.

BERMAN: All right. Brian, hang on one second.

But wait, there's more, right? Laura Jarrett, because it wasn't just this report first coming out of "The Washington Post" and confirmed by CNN about the Jeff Sessions contacts. There's "New York Times" report that says the Obama administration was so concerned about this on its way out, that it basically tried to disseminate as much of this intelligence as possible on its way out the door.

What have you learned there, Laura?

LAURA JARRETT, CNN JUSTICE REPORTER: That's right. What we're hearing is basically President Obama got the intelligence report and officials wanted to make sure it was as widely distributed as possible to avoid duplication of the problems that we saw with Russian hacking in the future, but also to leave a trail, right? To make sure that when he was gone, there was something left over to show what exactly happened there, John.

BERMAN: Laura Jarrett, for us, Doug Heye, Brian Fallon, thanks, guys, for being with us. Appreciate it.

HARLOW: All right. So, still to come, if Attorney General Jeff Sessions is under fire for talking to Russia as we were talking about, can he really oversee this investigation? How so? We're going to dive into all the legal aspects of this.

BERMAN: So, what constitutes perjury? What would it take to prove that?

HARLOW: Exactly.

Jeff Toobin will join us.

Also, get ready. It might get ugly on the Hill in the next hour. Democrats set to lash out on the Hill over this report. But not just Democrats, Republicans, too.

BERMAN: Wow, the stock market, its streak continues. It's broken for a second there. But a huge gain yesterday. What's in store for today? That's next.



[09:23:31] JEFF SESSIONS, ATTORNEY GENERAL: Well, I have not met with any Russians at any time to discuss any political campaign, and those remarks are unbelievable to me and are false. And I don't have anything else to say about that.

REPORTER: What about the calls to recuse yourself from your agency's probe of the --

SESSIONS: Well, I've said whenever it's appropriate, I will recuse myself. There's no doubt about that.


HARLOW: All right. So, that is brand new this morning. The attorney general there, Jeff Sessions, saying he will recuse himself if it's appropriate about these two previously undisclosed meetings that he did have during the election with the Russian ambassador.

So, when would it be appropriate?

BERMAN: Yes. The Republican chair of the House Oversight Committee says now, do it now. Moments ago he wrote this, "AG Sessions should clarify his testimony and recuse himself."

Democrats go further, they say he should flat-out resign. They say he perjured himself.

Let's get more on this. We're joined by Jeffrey Toobin, CNN senior legal analyst, a former federal prosecutor, and Jonathan Turley, a law professor at George Washington University. Mr. Toobin, at an undisclosed location, first to you, what constitutes

perjury here? How will we know whether Jeff Sessions perjured himself?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, perjury is an intentional false statement under oath. So, it's not a mistake, it's not a misrembering. It's lying, intentionally saying a false statement at a time you are under oath. That's only one of the possible crimes that are implicated by this sort of issue.

[09:25:04] You also have making a false statement that is not under oath which is a lesser crime. And then there is a misdemeanor which is withholding information from Congress. All of those crimes are traditionally investigated when issues of misleading Congress come up.

HARLOW: OK. So, you mentioned intent, which is very important. Did he intentionally lie under oath?

Jonathan Turley, to you -- Brian Fallon, formerly with the Clinton campaign, but also formerly with the Justice Department, made the point that in his written testimony, in Sessions' written testimony to Senator Leahy's question, similar question about contact with Russians during the election, he could have used that as an opportunity to clarify himself.

Here is how the White House ethics lawyer under President George W. Bush put it, Richard Painter, "misleading the Senate in sworn testimony about ones own contact with the Russians is a good way to go to jail."

How do you see it?

JONATHAN TURLEY, PROFESSOR OF LAW, GEORGE WASHINGTON UNIVERSITY: Well, first of all, I think it's a serious issue. I believe that he should recuse himself. It shouldn't be delayed. He should do it right away, just to establish that there won't be an appearance of a conflict of interest in going forward.

This has come up before. You had the Kleindienst scandal, what's called the ITT scandal in the '70s where that attorney general ultimately resigned, was charged with that lower misdemeanor that Jeffrey was talking about.

But you've also had other attorney generals accused of perjury including Eric Holder who said he had nothing to do with the targeting or potential prosecution of journalists. This has come up in the past.

I think we're well short of establishing a clear case for perjury. We have a good case for recusal in my view. But at the end of the day, we have to learn more. We have two meetings here, one of which was in the Senate office.

These senators tend to be well-schooled on avoiding election or campaign discussions, specific campaign discussions in their offices. That's really drilled in to them. But there will be records of meetings of that kind. These senators --

these offices are pretty valuable real estate, to get into those offices you have a lot of people involved. So, it is something that deserves a fuller explanation.

BERMAN: That's right. And so, you have sort of two --


BERMAN: Go ahead, Jeffrey.

TOOBIN: I just wanted to -- in fairness to Eric Holder, Eric Holder was accused by Republicans in hearings of lying. He was never even criminally investigated by anyone for lying under oath.


TOOBIN: That was a political attack on Eric Holder. But it is true. And I think we need to be very careful about this. I don't know if Jeff Sessions committed perjury or made a false statement or committed any crime at all. All I think -- the responsible thing to do at this point is to say it is worthy of looking into because of all these circumstances.

BERMAN: All right. Then there's this other issue. If you take these two poles of recusal which both of you seem to agree on, and, frankly, Republicans on the Hill now do and frankly, I think could very well happen in the next few hours. That's one pole.

You have resignation and perjury on the other pole. Both of you seem to think that's sort of the extreme end there that would take a lot more proving. In the middle, you have how does this whole investigation get handled now?


BERMAN: You know, say there's recusal. What would it take, Jeffrey, to trigger a special prosecutor here?

TOOBIN: Well, during the '80s and '90s, there was a law that essentially forced the appointment of what was then called an independent counsel, independent counsel Lawrence Walsh investigated the Iran Contra Affair. I was a member of the staff. So, I'm very familiar with that.

That law expired. There's no more mandatory independent special prosecutor law. So, basically, it's left entirely to the justice department's own discretion whether they appoint an independent counsel, whether the attorney general simply recuses himself and allows the investigation to be managed by other people within the Justice Department which is especially complicated now because there are not many confirmed people within the Justice Department.

So, the question is really does he appoint an outsider, someone who is completely outside the Justice Department? Or does he simply recuse himself and let other people within the Justice Department manage this investigation?

HARLOW: And we got 30 seconds here. Real quickly, Jonathan Turley, to you -- so just I'm clear, if Sessions were not to recuse himself, he would indeed be called as a witness in his own investigation, right?

TURLEY: Yes, that's clearly a possibility.

Now, the Justice Department has historically opposed the appointment of outside counsel. They're very proud almost culturally of being able to be independent. That doesn't mean that's the end of the question. There's also congressional investigations.

I think what everyone has to agree on is that we need a level of greater transparency as these investigations further. And we have to keep it open, whether we need someone outside the administration.