Sessions committed perjury and must resign.

Did Sessions commit perjury? I have seen commentators rightly note the intent requirement, and then give Sessions wiggle room, offer some hand-wringing, and then give him the benefit of the doubt. These arguments ignore the rest of our legal system’s treatment of intent and they ignore the details of the Sessions timeline. We discussed these events in my Administrative Law class yesterday as the story was breaking. Some students raised a valid concern: Sessions’s answers to ambiguous questions from Sen. Franken and Leahy should not be the basis for perjury, because of the ambiguity. My answer is that you have to put the two answers together in the context of how hearings and testimony work, and once you do, the perjury (or “false statement”) charges stick. The bottom line is that once Sessions gave a false (or at best, misleading) answer to Sen. Franken, he was given a direct opportunity to correct the false statement five days later from a very similar written question by Sen. Leahy.  His failure to disclose or correct his false answer to Franken in his written response makes a strong case for perjury and/or a criminal false statement under 18 U.S.C. 1001(a).
Let’s start with the facts (and a more complete timeline is here):
Throughout last summer, there were major questions about the Trump campaign’s Russia contacts. These concerns spiked in August with Paul Manafort’s resignation as campaign manager when it was revealed he had been on the pro-Putin Ukrainian payroll and failed to register himself in the U.S. as a foreign agent (a crime). It is revisionist to say that the Russian contacts story was revealed after the election. It had been a major story throughout the campaign, and then peaked in December. Every member of the Trump campaign and every appointee knew that Russian contacts were an enormous concern going into the confirmation hearings. Each nominee had to be prepared to answer such questions honestly.
On January 10th, Sen. Franken asks Sessions an unclear question about Russian contacts, ending with the question: “[I]f 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?”

The problem is the answer: “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 did not have communications with the Russians, and I’m unable to comment on it.”

Let’s be as fair as possible to Sessions here. It is not easy to explain everything you mean in live testimony. It could be unclear what he meant by “the Russians,” and he might mean to be saying that he did not have communications about the campaign. Franken’s question was unclear and broad, and it was implicitly about other Trump officials, not Sessions. (That’s also what makes Sessions’s defensive shift to a personal denial so strange. Why jump to deny a charge that was clearly not even alleged?)

But in the end, his live testimony was false. He did “have communications with the Russians” during the campaign. So this is what normally happens in confirmation hearings: the nominee reviews his testimony with lawyers afterward to make sure he or she did not accidentally mislead or lie. The nominee has days to amend their testimony, to give written clarifications if anything was untrue or misleading. If he or she does, then the problem is resolved. There is no “gotcha” for the earlier false statement, because the nominees have ample opportunity on their own to clarify.

Not only did Sessions fail to correct his false or misleading answer, but he continued to mislead when given a direct opportunity to clarify or disclose one week later in a written answer to Sen. Leahy.

First, on Jan. 12 (two days after Franken’s question), the Washington Post broke a huge story about national security adviser-designate Michael Flynn’s interactions with Russia’s Ambassador Kislyak.  On Jan. 15, Pence appears on “Face the Nation” to discuss Kislyak. At this point, every nominee has been reminded about Kislyak, that he was a really big deal, and that meeting him is a really big deal. If Sessions had somehow forgotten meeting Kislyak, he was undoubtedly reminded with a ton of bricks from the media storm around Flynn. At that point, any nominee would think, “Wait, did I meet with the same guy? And if I did, did I say anything under oath to the contrary?”  It would be problematic enough to fail to clarify Sessions’s live answer. But the problem is worse.

On Jan. 17, five days after the Washington Post story, and a week after the false answer to Franken, Sen. Leahy, the ranking Democrat on the Judiciary Committee, sends Sessions a letter asking about Russia, among other things:

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?


Boom. There’s the case for perjury/ criminal false statement. Now let me be clear: by itself, the answer to Leahy appears to have wiggle room. But you cannot read the answer to Leahy by itself. It may be a second lie on its own, but more clearly, it is a failure to clarify the false statement in the live testimony, it continues to mislead, and it builds a strong case for intent to mislead and deceive.  Keep in mind, there are reports that Sessions did discuss the 2016 election with Kislyak, so in fact, both statements under oath may be false. In the very least, Sessions should have clarified his answer to Franken on his own initiative, especially once the Flynn/Kislyak story exploded two days later. But Leahy gave Sessions a gift, a fairly direct opportunity to disclose, clarify and correct a false statement, but Sessions turned that opportunity into a strong case of a deliberate false statement.

Here’s one more authority about whether this behavior counts as perjury or a criminal false statement: Sessions himself. In 1999, Sessions concluded that Bill Clinton’s statements, despite some roughly similar kinds of word-parsing and wiggling, constituted perjury, and Sessions voted to convict on both perjury and obstruction of justice. What’s good for the goose, Sessions?

Look, it’s always difficult to prove intent, and yet our legal system doesn’t say in countless criminal and civil cases, “Oh, it’s hard to prove intent, who could know what he intended? Let’s not prosecute.” No, our legal system convicts thousands and thousands of people for intentional crimes each year even though intent is never epistemologically knowable to an outsider. Our legal system uses context and common sense to reach our best conclusions about intent (beyond a reasonable doubt to convict). If you’re going to say that any doubt about Sessions’s intent is reason to excuse him, then you need to consider releasing thousands and thousands of people from prison. (Talk about massive criminal justice reform!)  The Attorney General does not get a special privilege or a free pass on “intent” when his Department prosecutes people every day for similar kinds of intent cases.
The bottom line: Sessions must resign. There is a strong case for perjury that a special counsel must investigate. Give that special counsel the discretion to decide to bring criminal charges. But it is absurd to give Sessions and his DOJ lawyers that discretion. The case for appointing a special counsel on the Russia contacts, with jurisdiction over Sessions’s contacts and perjury/false statement is overwhelming.
So what are the rules for appointing special counsel?  Back in January, I suggested that President Obama should appoint special counsel to investigate the Russia contacts and emoluments.  The same laws and regulations still apply and are more relevant now. If Sessions recuses, then formally a Deputy Attorney General takes over the case, but the next step should be appointing a special counsel/special prosecutor. I set out the statutes and rules in an earlier post here.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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