Who Was the Third Man in the Comey/Sessions Meeting?

This article first appeared on the Just Security site.

During all of the intense debate over the testimony of Attorney General Jeff Sessions, perhaps the most important statement by Sessions has gone largely overlooked.

During questioning by Senator Roy Blunt (R-Mo.), Sessions was asked about his meeting with former FBI Director James Comey, in which Comey expressed his concern about meeting alone with President Donald Trump.

Sessions said that Comey's account of that conversation was "incorrect" and then said the following:

[Comey] indicated I believe that he was not totally sure of the exact wording of the meeting, but I do recall—my Chief of Staff was with me, and we recall—that I did affirm the long-standing written policies of the Department of Justice concerning communications with the White House.

In this short exchange, Sessions admitted that there was another person in the room with him and Comey – a witness who could shed light on the differing accounts of the conversation between Sessions and Comey. This is important because the two men have described what happened very differently.

In Comey's prepared testimony, he said that he "took the opportunity to implore the Attorney General to prevent any future direct communication between the President and me." He said it was "inappropriate and should never happen."

Comey said that Sessions "did not reply." During questioning, Comey elaborated, stating that Sessions was "just kind of looking at me" and "his body language gave me a sense like, 'What am I going to do?'"

It's important to note that Comey said he didn't remember "real clearly" and might be "projecting onto" Sessions. Sessions referenced those remarks in his testimony, noting that Comey "was not totally sure of the exact wording of the meeting."

Sessions's account of the meeting was markedly different than Comey's. Instead of silence, or a "What am I going to do?" stare, Sessions testified that he referred Comey to written Justice Department policies and felt that Comey adequately adhered to those policies.

This difference is important because it provides an explanation as to why Sessions did not take any action in response to what would otherwise be a highly unusual request from the FBI Director.

Sessions's chief of staff at the Justice Department, Joseph "Jody" Hunt, can help reconcile these two differing accounts. He is an important fact witness who will likely be interviewed by Special Counsel Robert Mueller or his staff and could ultimately end up testifying before a grand jury.

The chief of staff's status as a fact witness makes Sessions' comment that "I do recall—my Chief of Staff was with me, and we recall" surprising because it strongly suggests that Sessions discussed this conversation with his chief of staff prior to his Senate testimony. It also suggests that Sessions believes that their account of the conversation was identical as to this key point.

That begs the question: Why did Attorney General Sessions discuss this key conversation with another fact witness prior to his Senate testimony? As a former federal prosecutor, Sessions is no doubt aware that witnesses are regularly admonished not to discuss their account of events with each other.

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That admonishment serves an important purpose. Even if witnesses are well intentioned, when they discuss their recollection of events, they inevitably influence each other's recollections. Keeping witnesses from discussing their versions of events with each other ensures that their recollections are as accurate and untainted as possible.

At this point, we don't know the circumstances under which Sessions discussed this conversation with his chief of staff. He could have done so prior to learning of Comey's account of his private conversations with the President. It is also possible that he did so more recently, in preparation for his Senate testimony. The former would be understandable, while the latter would be improper.

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The Senate Intelligence Committee should ask Sessions when and why he discussed this conversation with his chief of staff. Eventually Mueller and his staff will do so.

Renato Mariotti is a former federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney's Office for the Northern District of Illinois.