Journalists and Democrats in Congress were far too quick to speculate that Attorney General Jeff Sessions perjured himself during his testimony before the Senate Judiciary Committee, after The Washington Post revealed he had failed to disclose two meetings with the Russian ambassador to the U.S.
Perjury is the crime of willfully telling an untruth while under oath before a court or tribunal. Sessions’ failure to disclose contacts with Russian officials is disappointing, but doesn’t qualify as perjury within the meaning of federal law.
The federal perjury statute reads as follows:
having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
in any declaration, certificate, verification, or statement under penalty of perjury…willfully subscribes as true any material matter which he does not believe to be true;
is guilty of perjury.
There are three elements here: a statement must be false, the false statement must be material (relevant) to the question/s asked, and the false statement must be made with an intent to deceive.
The “willfulness” standard is especially challenging in a perjury prosecution. Absent a clear demonstration that Sessions intended to lie to the committee, an indictment is extremely unlikely. Such a demonstration could include an email from Sessions or an aide disclosing intentional deception, a recording to this effect, or a post-hoc comment defending a false answer. This list isn’t exhaustive, but the absence of such evidence likely forecloses a perjury charge.
It also isn’t clear that either of Sessions’ responses are untrue. Sessions was asked about contacts with elements of the Russian government twice during the course of his confirmation. The first was on a questionnaire from Democratic Sen. Patrick Leahy. His question read:
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 responded with a terse “No.”
About the 2016 election is the operative language here. If Sessions’ conversations with the Russian ambassador did not concern the election, then his answer is truthful. This is hardly an inspiring display of integrity from the nation’s top law enforcement officer, but strictly speaking, it is a true statement.
His exchange with Democratic Sen. Al Franken is more complicated, but on balance, it seems to mitigate against a perjury charge.
“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?” Franken asked.
“I’m not aware of any of those activities,” Sessions responded. “I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.”
Franken’s question is specifically tailored to communications made in the course of this campaign between the Russians and the Trump campaign. A reasonable listener could conclude the question solicits exchanges related to the general election, or exchanges in which both parties conspired in furtherance of a shared objective.
More importantly than this, the material (again, relevance) element almost certainly absolves Sessions of wrongdoing. It is not clear that a brief interaction at a social event and a meeting concerning matters unrelated to the campaign are material to Leahy and Franken’s questions. Of course, one can reasonably argue that they are, but the absence of a consensus on this point is very helpful to the embattled AG.
There is another Franken-Sessions exchange that seems especially relevant. At the beginning of his first line of questioning, Franken read a quote from Sessions himself into the record.
“We’re not going to misrepresent any nominee’s record,” Sessions said in 2009, of his task as ranking member of the Judiciary Committee.
One hopes he would expect the same of a nominee.
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