The U.S. Senate’s Dysfunctional Confirmation Process

The recent squabble over new U.S. Attorney General Jeff Sessions’ testimony at his confirmation hearing before the U.S. Senate Judiciary Committee highlights the dysfunctionality of that process. After examining the current process as used for Sessions, suggestions will be made for an improved process.

The Current Process

Every member of the committee is allotted a set number of minutes to make statements and ask questions. The committee chair (now a Republican) opens followed by the ranking member of the other political party (now a Democrat). Then a member of the majority party (Republican) is granted the same privilege before returning to someone from the minority party (Democrat). The committee members also are permitted to submit written questions to the nominee after the hearing.

As a result, the time and ability to ask follow-up questions is severely limited and indeed is sidelined by the structure of the hearing.

In addition, the senators are used to making political speeches and hogging the limelight. Some are not lawyers by training or have forgotten how to ask questions designed to elicit useful information. These facts also adversely affect the ability of a hearing to obtain pertinent information from the nominee.

Committee’s Confirmation Hearing for Sessions

The above problems were exemplified at Mr. Sessions January 10 confirmation hearing by his responses to questions from Minnesota’s Senator Al Franken and New Hampshire’s Senator Patrick Leahy:[1] Here are those exchanges:

  • Franken:CNN just published a story alleging that the intelligence community provided documents to the president-elect last week that included information that quote, ‘Russian operatives claimed to have compromising personal and financial information about Mr. Trump.’ These documents also allegedly say quote, ‘There was a continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government.’
  • “Now, again, I’m telling you this as it’s coming out, so you know. But if it’s true, it’s obviously extremely serious 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?”
  • Sessions:“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 — did not have communications with the Russians, and I’m unable to comment on it.”
  • Leahy: “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?”
  • Sessions: “No.”

Franken’s question was clearly too verbose and difficult to understand and was focused on what Sessions would do in the future as Attorney General if there were evidence that the Trump campaign communicated with the Russian government during the campaign. Sessions’ volunteering that he did not have communications with the Russians during the campaign is now shown to be incorrect, but it was not responsive to the question.

Leahy’s question is better, but is still limited to contacts with Russian government officials “about the 2016 election.” Thus, Sessions’ flat “No” may or may not be truthful in light of subsequent disclosures that he had at least two meetings with the Russian Ambassador to the U.S.

Committee’s Post-Hearing Proceedings for Sessions

After the hearing, Senator Franken submitted 20 such questions with many subparts, but none concerned Russia. Senator Leahy also submitted 37 such questions, again with many subparts. Other written questions came from four of the 11 Republican committee members and from all of the other seven Democratic members.[2]

One of Leahy’s question (No. 22) concerned Russia with subparts about the U.S. intelligence community’s report about Russian interference in the U.S. election of 2016, and Sessions said he had not reviewed the report, “but have no reason not to accept the [report’s] conclusions.”

Another subpart (e) of that Leahy question stated: “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?” Sessions response: “No.” (Emphases added.)

This written question from Leahy comes closer to asking the appropriate foundation question, but it was still limited to contacts “about the 2016 election,” which provided Sessions with a basis to interpret that limitation and to say “no” if any such contacts were not about the election as so interpreted.

Supplemental Committee Proceedings for Sessions

The truthfulness of Sessions’ responses to these questions was called into question by a March 1 Washington Post report that he had had at least two meetings with the Russian Ambassador to the U.S. in this time period. Indeed, this report prompted Senator Franken to state that Sessions had misled the American public about his contacts with Russian officials and that he should reappear before the committee to answer “tough questions” on this subject.[3]

The Attorney General, however, immediately responded to these concerns. On March 1 his spokesperson said that he did have the two meetings with the Ambassador that were referenced in the Washington Post article, but that they were in his capacity as a member of the Armed Services Committee, not as a Trump supporter, and that there was no discussion about issues regarding the presidential campaign. The next day Sessions said his hearing testimony was “honest and correct as I understood it at the time” although he was “taken aback” by Franken’s question and was focused on its reference to possible contacts between Trump campaign surrogates and Russian officials. “In retrospect,” he said, “I should have slowed down and said I did meet one Russian official a couple times, and that would be the ambassador.” Sessions also said that the September meeting at his office with the Ambassador included two of the Senator’s senior staffers, that the two principals talked about a trip the Senator made to Russia in 1991, terrorism and Ukraine, that the conversation became “a little bit . . . testy” and that the Senator declined the Ambassador’s invitation to lunch. In addition, on March 2 Sessions recused himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”[4]

The Judiciary Committee Chair, Senator Chuck Grassley (Rep., IA), resolved this controversy by rejecting the request by the Democratic committee members for another public hearing and by offering Sessions an opportunity to supplement his testimony in writing.

Sessions did so on March 6 with the following statement after repeating the previously quoted Franken question and Sessions’ answer:[5]

  • “My answer was correct. As I noted in my public statement on March 2, 2017, I was surprised by the allegations in the question, which I had not heard before. I answered the question, which asked about a “continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government,” honestly. I did not mention communications I had had with the Russian Ambassador over the years because the question did not ask about them.”
  • “As I discussed publicly on March 2, 2017, I spoke briefly to the Russian Ambassador at the Republican National Convention in Cleveland, Ohio, in July 2016. This was at the conclusion of a speech I had made, when I also met and spoke with other ambassadors. In September 2016, I met with the Russian Ambassador at my Senate office in the presence of members of my professional Senate staff. I do not recall any discussions with the Russian Ambassador, or any other representative of the Russian government, regarding the political campaign on these occasions or any other occasion.”

Sessions then responded to two questions posed in a March 3 letter by the Democratic members of the committee. The first asked why he had not supplemented the record to note any contact with the Russian Ambassador before its public disclosure. Sessions said, “Having considered my answer responsive, and no one having suggested otherwise, there was no need for a supplemented answer.” The second question asked why he had not recused himself from “Russian contacts with the Trump transition team and administration.” Sessions said the scope of [his] recusal as described in the Department’s [March 2] press release would include any such matters. This should not be taken as any evidence of the existence of any such investigation or its scope. Suffice it to say that the scope of my recusal is consistent with the applicable regulations, which I have considered and to which I have adhered.”

After the submission of this Sessions’ letter, Committee Chair Grassley released the letter as an attachment to a press release announcing that there “are no plans to ask Sessions to come before the committee before an annual oversight hearing, as is customary.” Grassley also stated, ““I appreciate Attorney General Sessions’ quick action to clear up confusion about his statement and I look forward to confirming the team who can help him carry out the functions of the department, like going after sex offenders, protecting Americans against terrorists and criminal activity, and stopping drug traffickers.”  Grassley added that Sessions had recused himself as he said he would in his hearing testimony in sharp contrast to the failure of former Attorney General Loretta Lynch to do so with respect to investigation of Hillary Clinton’s personal email server and classified information found on it.[6]

A Suggested Different Procedure

The squabble over Sessions’ testimony regarding contacts with Russians could have been eliminated by a procedure whereby an attorney on the committee staff with experience of interrogating witnesses would do the questioning on selected topics, rather than having only the senators on the committee do so. The following is a better way of asking Sessions about whether he had any contact with Russian officials:

  • On February 28, 2016, you endorsed Donald Trump for the Republican presidential nomination.[7] Correct? (Sessions: Yes.)
  • On and after February 28, 2016, to the present, have you had any communications, oral or written, with any Russians? (Sessions: Yes.)
  • Identify all such communications by their date, location and the names of the Russians.
  • For all such communications, identify any other persons present, the length of the communications or meetings, state the substance of the communications and identify all documents (including, but not limited to, letters, memoranda, agendas, notes, audio and/or video recordings) regarding or reflecting the communications.

Conclusion

Although this Senate procedure is flawed and should be changed, a prominent New York Times’ columnist, Nick Kristof, asserts, “there has been too much focus on Attorney General Jeff Sessions, not enough on Paul Manafort, the former Trump campaign manager” with respect to connections between the Trump presidential campaign and Russia. Instead Kristof identifies specific facts or “dots” to support his suspicion “that Trump’s team colluded in some way with Russia to interfere with the U.S. election” and supports a full and fair investigation to determine whether that suspicion is validated.[8]

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[1] Carroll, In context: What Jeff Sessions told Al Franken about meeting Russian officials, PolitiFact (March 2, 2017).

[2] U.S. Senate Judiciary Committee, Nomination of Jeff Sessions, of Alabama, to be Attorney General (Feb. 28, 2017).

[3] Entous, Nakashima & Miller, Sessions met with Russian envoy twice last year, encounters he later did not disclose, Wash. Post (Mar. 1, 2017); Franken, Sen. Franken’s Statement on Report That Attorney general Jeff Sessions Misled American Public under Oath During Confirmation Hearing about His Contact with Russian Officials (Mar. 2, 2017); Demirjian, O’Keefe, Horwitz & Zapotosky, Attorney General Jeff Sessions will recuse himself from any probe related to the 2016 presidential campaign, Wash. Post (Mar. 2, 2017).

[4] Dep’t of Justice, Attorney General Sessions Statement on Recusal (Mar. 2, 2017).

[5] Letter, Sessions to Grassley & Feinstein (Mar. 6, 2017); Assoc. Press, Sessions Clarifies Testimony on Russia, Says He Was Honest, N.Y. Times (Mar. 6, 2017).

[6] Grassley, Grassley: Attorney General Clears Confusion on Hearing Testimony (Mar. 6, 2017).

[7] Stokols, Sen. Jeff Sessions endorses Trump, Politico (Feb. 28, 2016).

[8] Kristof, Connecting Trump’s Dots to Russia, N.Y. Times (Mar. 9, 2017).

The Future of U.S.-Cuba Normalization Under The Trump Administration

Many U.S. citizens who welcomed the last two years of U.S.-Cuba normalization are worried about whether that policy will be continued by the future Trump Administration. Therefore, examination of past comments about Cuba by prospective members of that future administration is appropriate. Here is such an examination.

A prior post recounted the responses to the death of Fidel Castro from President-elect Donald Trump, Vice President-elect Mike Pence, prospective White House Chief of Staff Reince Priebus and Trump aides Kellyanne Conway and Jason Miller. The basic conclusion of their remarks was that Mr. Trump would be seeking a better deal with Cuba than the Obama Administration had negotiated.

More recently, at a December 16 “thank You” rally in Orlando, Florida, Trump told the crowd, “America will also stand with the Cuban people in their long struggle for freedom. Their support has been unbelievable. The Cuban people. We know what we have to do, and we’ll do it. Don’t worry about it.”[1]

Additional negative views about U.S.-Cuba rapprochement are found in comments by others in the prospective Trump Administration.

The most negative words came from Cuban-American Mauricio Claver-Carone, transition team member for the Department of the Treasury. After the election in an op-ed article in the Miami-Herald he argued,“Obama’s new course for Cuba has made a bad situation worse.” It concluded with this statement: “There’s no longer any rational strategy behind President Obama’s ‘Cuba policy.’ It has gone from what it initially portrayed as a noble purpose to pure sycophancy in pursuit of ‘historic firsts. Unfortunately, those Cuban dissidents who recognized Obama’s intent from the beginning and labeled it ‘a betrayal’ of their fight for freedom have now been proven correct. Their foresight has come at a terrible cost.”[2]

A similar hostile analysis of rapprochement come from Mike Pompeo, a Congressman from Kansas and the nominee for Director of the CIA.[3] Here are two examples. Immediately after the December 17, 2014, news of the release of Alan Gross from Cuban prison, Pompeo said, “Unfortunately, the Obama Administration has once again taken the opportunity to appease America’s enemies by releasing convicted spies, reviewing Cuba’s designation as a State Sponsor of Terror, and attempting to re-establish diplomatic relations with the Castro regime. In March 2016 Pompeo said, Obama’s trip to Cuba was “misguided for the flawed Cuba policy it represents,” including the dropping “ Cuba from the State Sponsors of Terrorism list, . . . [loosening] sanctions, and . . . [opening] a U.S. Embassy in Havana while there has been zero needed political reform, no increase in freedom, and inadequate loosening of Castro’s grip on power.”

General Michael Flynn, the proposed White House National Security Advisor, sees Cuba as an enemy. Promoting a book he co-authored (The Field of Fight), Flynn stated his belief that the U.S. is in “a global war, facing an enemy alliance that runs from Pyongyang, North Korea, to Havana, Cuba, and Caracas, Venezuela. Along the way, the alliance picks up radical Muslim countries and organizations such as Iran, al Qaeda, the Taliban and Islamic State.” (Emphasis added.) Another Kelly article says the world is divided into two sets of enemies. First, there are the radical Islamists, whom he sees as America’s principal foes. Then there is a constellation of hostile anti-democratic regimes that he calls “the alliance” that includes both Islamists and non-Islamists that collaborate against the West because we’re their common enemy. The alliance includes Russia, Syria, North Korea, China, Iran, Cuba, Bolivia, Venezuela and Nicaragua.” (Emphasis added.) [4]

Trump’s nominee for Secretary of State, Rex Tillerson, however, has not expressed an opinion on U.S.-Cuba relations. Only tangential clues turn up. [5] For example, Tillerson has negotiated multi-billion dollar deals with Putin and Kremlin-confidant Igor Sechin, the head of a Russian state-owned oil company who has negotiated oil deals with Cuba. But at ExxonMobil’s May 2014 annual stockholders’ meeting, Tillerson said the company had no plans to participate in Cuban deposits development by Russian oil major Rosneft because of U.S. sanctions against Cuba.

Guardedly positive comments about Cuba have been made by General John Kelly, the nominee for Secretary of Homeland Security, who recently served as the U.S. military’s Commander of the Southern Command with responsibility for the detention facility at Guantanamo Bay. Last January Cuba was a first-time participant in the Caribbean Nations Security Conference, when Kelly said, “We’ve normalized now and, regardless of how we think of each other in terms of politics, we have very, very common challenges.” Kelly also said that the Naval station at Guantanamo Bay is “strategically valuable” and should remain open after the detention facility is closed and possibly jointly operated with Cuba employing Cubans. At an earlier Pentagon briefing he said, “the Guantanamo Naval Base is a hugely useful facility to the United States.”

In an October 2015 interview, Kelly said that the U.S. “Coast Guard has worked with the Cubans over the years, but mostly in terms of rescue-at-sea and humanitarian activities. But the other four services – Army, Navy, Air Force, and Marines – have had zero relationships with the Cubans. There is a meeting called the “fence-line meeting” at Guantánamo where the Base Commander, a U.S. Navy Captain, meets about weekly with a counterpart on the other side. They talk and chat a little bit, but it’s not much of a relationship.’ In addition, “There are no drugs in Cuba.” [6]

As Kelly neared retirement as Commander of the Southern Command in January 2016, he said, “What tends to bother [terrorist groups and rights activists] . . . is the fact that we’re holding them [at Gitmo] indefinitely without trial … it’s not the point that it’s Gitmo. If we send them, say, to a facility in the U.S., we’re still holding them without trial.” If “ it were agreed Guantanamo should be closed, logistically it wouldn’t be hard, and remaining detainees could be held in the U.S.— “They’re not going to escape, for sure.”

One advocate for rapprochement in the Trump team is (or has been?) Kathleen (K.T.) McFarland, named as Deputy National Security Advisor. She has publicly backed open relations with Cuba. In 2014, she wrote “We must take steps now to ensure that Cuba doesn’t become a Russian or Chinese pawn, and thus serve as a launch pad to threaten America’s security were they to establish a military presence.” [7]

Basic Internet searches about the following members of Trump’s team failed to find any comments about Cuba: General James Mathis (Secretary of Defense), Vincent Viola (Secretary of the Army), Steven Mnuchin (Secretary of the Treasury), Wilbur Ross (Secretary of Commerce), Todd Ricketts (Deputy Secretary of Commerce), Nikki Haley (U.N. Ambassador) and Jeff Sessions (Attorney General).[8]

Conclusion

The above analysis of commentaries by members of the Trump team regrettably suggests a dim future for continuation of normalization of U.S.-Cuba relations. Those of us in the U.S. who believe that this is an erroneous move need to continue to advocate for normalization and to share that opinion with our Senators and Representatives, the Trump Administration and our fellow U.S. citizens.

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[1] Lemmongello, Trump thanks Florida at Orlando rally, Orlando Sentinel (Dec. 116, 2016).

[2] Claver-Carone, Obama’s Cuba policy makes bad situation worse, Miami Herald (Nov. 16, 2016).

[3] Pompeo, Rep. Pompeo Responds to Shift in Policy with Cuba (Dec. 17, 2014); Pompeo, Independent Journal Review: Mr. President, There Is A Reason No U.S. President Has Visited Cuba for 88 Years (Mar. 21, 2016).

[4] Carden, The Real Reason to Worry About Gen. Michael Flynn, Nation ( Nov. 18, 2016); Totten, How Trump’s General Mike Flynn Sees the World, World Affairs (Nov. 30, 2016).

[5] Schoen & Smith, Why Rex Tillerson would be a disaster as Secretary of State, FoxNews (Dec. 13, 2016); ExxonMobil says not to cooperate with Russia’s Rosneft in Cuba, Prime Bus. Net (May 29, 2014). Tillerson’s close relationship with Sechin is covered in MacFarquhaar & Kramer, How Rex Tillerson Changed His Tune on Russia and Came to Court Its Rulers, N.Y. Times (Dec. 20, 2016) and Kashin, Rex Tillerson’s Special Friend in the Kremlin, N.Y. Times (Dec. 22, 2016).

[6] Assoc. Press, Cuba to attend security conference with US for first time (Jan. 12, 2016); U.S. Dept Defense, Department of Defense Press Briefing by General Kelly (Mar. 12, 2015); Lockhart, A Conversation with General John F. Kelly, SOUTHCOM Commander (Oct. 15, 2015); O’Toole, Here’s What America’s Longest-Serving General Most Fears, Defense One (Jan. 11, 2016).

[7] Ordońez, Trump’s been inconsistent on Cuba. Will Castro’s death make a difference? McClatchy DC (Nov. 26, 2016).

[8] As always I invite comments pointing out errors of commission or omission. No similar searches were done for Ryan Zinke (Secretary of Interior), Rick Perry (Secretary of Energy), Andrew Puzder (Secretary of Labor), Ben Carson (Secretary of Housing and Urban Development), Tom Price (Secretary of Health and Human Services), Betsy DeVos (Secretary of Education), Scott Pruitt (Administrator of Environmental Protection Agency), Linda McMahon (Administrator of Small Business Administration), Seema Verma (Administrator of Center for Medicare and Medicaid), Stephen Miller (Senior Advisor to President for Policy), Gary Cohn (Director of National Economic Council), Mick Mulvaney ( Director of Office of Management and Budget) and Don McGahn (White House Counsel).