Law & the Courts

The Perjury Allegation against Jeff Sessions Is Meritless

Sessions testifies at his confirmation hearing, January 10, 2017. (Reuters photo: Kevin Lamarque)
His testimony was inaccurate but not willfully false.

On the overwrought, partisan allegations that Attorney General Jeff Sessions committed perjury in his confirmation-hearing testimony, let’s cut to the chase: There is a good deal of political hay to be made because Sessions made a statement that was inaccurate — or at least incomplete — especially when mined out of its context. But the claim that his testimony was perjurious as a matter of law is wholly without merit.

Perjury is not inaccuracy. It must be willfully false testimony. Willfulness is the criminal law’s most demanding mens rea (state of mind) requirement. Prosecutors must prove beyond a reasonable doubt that the speaker knowingly, voluntarily, and intentionally — not by accident, misunderstanding, or confusion — said something that was untrue, with a specific purpose to disobey or disregard the law. Therefore, when there is an allegation of perjury, the alleged false statements must be considered in context. Any ambiguity is construed in favor of innocence. If there is potential misunderstanding, the lack of clarity is deemed the fault of the questioner, not the accused.

We will turn momentarily to the transcript of the exchange between Sessions and Senator Al Franken (D., Minn.). First, let’s highlight the inaccuracy in the testimony. Sessions stated that he did not have “communications with the Russians.” It is now known that there were at least two occasions during the 2016 campaign on which Sessions, then a senator and a member of the chamber’s Armed Services Committee, had contact with Sergey Kislyak, the Russian ambassador to the United States.

One of these occasions is easily dismissed: Apparently, Sessions saw Kislyak, in addition to dozens of other ambassadors, at a Heritage Foundation reception during the Republican convention. As Sessions was leaving the podium, a smaller group of these diplomats, including Kislyak, approached Sessions to chat briefly — mainly to compliment him on his remarks. Even the Washington Post doesn’t think much of this chance meeting (buried deep in its story) other than the fact that it happened.

A second meeting occurred in September in Sessions’s Senate office. The Post dramatically claims that this meeting occurred “at the height of what U.S. intelligence officials say was a Russian cyber campaign to upend the U.S. presidential race.” That is a curious description. The report by intelligence officials claimed that the Russian cyber effort targeted both major parties, not just Democrats. Moreover, the successful hacking of Democratic e-mail accounts had already occurred by September. There is not a shred of evidence that anyone in the Trump campaign was in any way complicit in the hacking, much less that the hacking affected the outcome of the election. To the unknowable but probably inconsequential extent that the Trump campaign may have benefited from disclosure of John Podesta’s e-mails, there is nothing criminal about that — no more than there is anything criminal in the fact that the much of the American media skew their coverage in favor of Democrats.

In any event, Sessions has stated that this meeting with the Russian ambassador — one of several he held with ambassadors from various nations — occurred in the context of his Senate responsibilities and had nothing to do with his role as a Trump-campaign surrogate. Nevertheless, the meeting did occur and therefore ostensibly contradicts his confirmation-hearing testimony that he did not have communications with Russians.

Now, let’s look at the relevant portion of the transcript, the nub of which the Post has excerpted as follows:

Franken: Okay. CNN has just published a story, and I’m telling you this about a news story that’s just been published. I’m not expecting you to know whether or not it’s true or not. But 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.

Senator Franken patently framed this line of inquiry in the context of Russian espionage against the Trump campaign, drawn from CNN’s report of a salacious, discredited, uncorroborated dossier. It claimed that the Russians had acquired compromising personal and financial information about Donald Trump. With that premise, Franken added the dossier’s claim that “there was a continuing exchange of information between Trump surrogates and intermediaries for the Russian government.” The point that Franken was clearly driving at was that Sessions, having supported Trump and been a Trump-campaign surrogate, should recuse himself as attorney general from any investigation probing communications between the Trump campaign and Russian officials.

In that context, Sessions volunteered that he was not aware of “those activities” — clearly meaning the activities outlined in the dossier. He then appeared to discount the claim that he was a Trump-campaign “surrogate.” To be sure, “surrogate” is not so much a formal position as a blurry description, often offered by persons other than the so-called surrogate, of someone who supports a candidate and speaks on the candidate’s behalf. In an incomplete thought (which one often gets in witness testimony), Sessions appeared to quibble with the notion that he was a formal “surrogate” as opposed to someone who was occasionally referred to as one. It seems apparent that he was distancing himself from Franken’s insinuation about Trump surrogates colluding with Russians. At that point, Sessions abruptly cut himself off and summarily said he “did not have communications with the Russians, and I’m unable to comment on it.”

The witness must refrain from willfully providing testimony that is both false and intended to deceive the tribunal. The burden is on the questioner to remove ambiguity by asking exacting follow-up questions.

In context, Sessions obviously meant that he did not have communications with the Russians in the capacity of a surrogate for the Trump campaign and that he was unable to comment on the explosive allegations in the dossier. Manifestly, he was trying to say that he did not believe that Franken’s outline of the dossier provided any basis for him, Sessions, to recuse himself from any potential investigation. He was not saying that in his capacity as a United States senator, unrelated to the Trump campaign, he had never had any contacts with Russian officials.

It is fair enough for critics to maintain that Sessions should have been clearer. But if we consider this matter not as a political dispute but a potential perjury prosecution, then the burden was on Franken, not Sessions, to be clearer. The witness’s obligation, as a matter of perjury law, is to refrain from willfully providing testimony that is both false and intended to deceive the tribunal. The burden is on the questioner to remove all doubt or ambiguity by asking exacting follow-up questions.

You may be thinking: Sessions should have added, “When I said I had ‘no communications,’ I meant ‘no communications in the role of a Trump surrogate discussing campaign business’; I did not mean that I’ve never spoken to a Russian official.” It’s only natural to see it that way. But that is not how it works if we are considering a charge of perjury. In those circumstances, it was up to Franken to clarify matters, by asking a follow-up along the lines of, “To be clear, I am asking you whether you’ve had any contact whatsoever with Russian officials during the campaign, whether as a Trump surrogate, in your capacity as a U.S. senator, or under any other circumstances.”

So, was Sessions’s testimony inaccurate? Sure, especially taken out of context. But was it perjurious? Not even close. The context, established by Franken’s questioning, elucidates that when Sessions denied communications with Russians, he was denying that he had spoken with Russian officials as a Trump surrogate, particularly in any relation to the misconduct described in the dossier.

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