Sessions preview and review: The already strong case for felony false statement might get unbearably stronger

In March, I posted that I concluded Sessions had already violated federal law with a felony false statement before the Senate for false statements, failing to disclose two meetings with Russian ambassador Kislyak.  The allegation today is that there was a third meeting in April 2016 that was not disclosed. Review the actual questions and Sessions’s answers. A third undisclosed meeting should be a third strike, given that the first two misleading or false statements required more disclosure, not evasive parsing.

A quick review of the basic facts:

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?”

Sessions’s answer was false: “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.”

If we’re being generous, it is not easy to explain everything you mean in live testimony. It arguably could be unclear what he meant by “the Russians” in the moment, but the answer itself was untrue.  What normally happens during confirmation hearings is that a nominee reviews all of his or her 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.  It was already problematic that Sessions failed to correct his answer on his own, 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 letterasking 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?


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 ignored that opportunity, which already built a strong case of a deliberate false statement.

Today’s testimony could make that case too strong for Republicans to ignore, but I’m not holding my breath. The other audience today is Bob Mueller and his team of prosecutors.

Of course, that’s only one enormous legal problem on today’s docket. Sessions also has to answer for the Comey firing, about his failure to follow his recusal, about what he knew of Comey’s Russia investigation (including the timing of Comey’s request for more resources to investigate Flynn and Russia contacts), and whether Sessions participated in obstruction of justice. A third issue is whether Trump can fire Mueller (a question about the DOJ regulations).  A fourth issue is what was Sessions’s role in bringing Carter Page, the alleged Russian agent, into the Trump campaign.

I’m also looking to see if Sessions says that Trump is invoking executive privilege on any matters (I’d guess yes) and if Sessions would invoke the privilege against self-incrimination (I’d guess no). And I’m looking for the tone and body language from the Senate Republicans. Are there any more signs that they are breaking from the party line? Last week’s Comey session had some positive indications, but I hope they are approaching Sessions’s earlier conduct with sharp criticism and larger concerns.

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.

One thought on “Sessions preview and review: The already strong case for felony false statement might get unbearably stronger”

  1. Thanks, Jed You make my day – all the way over here in Ireland. Thank you for all the great work.
    Love to the family,


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