WaPo: Don't count on a perjury charge sticking against Sessions

Will prosecutors — or Congress — force Jeff Sessions to face perjury charges? Don’t count on it, writes Philip Bump at the Washington Post, for a few reasons. Bump more or less skips the obvious one, which is that Sessions didn’t do much more than answer a question in a context in which it is no longer being taken. But even apart from that, two former federal prosecutors tell Bump that the case is flimsy, and perjury’s a lot more difficult to prove than people think:

Perjury demands that the falsehood be material to the testimony, and in the response to Franken, [Paul] Butler said he isn’t sure that Sessions’s statement about meeting with Russians was.

“He wasn’t asked directly about his own contacts, so he could say that his answer wasn’t material because that wasn’t really what the question was about,” Butler said. “In fact, he could say if they really wanted to know that, they could have asked that.” …

Even had Sessions been asked more directly — “Did you make contact with Russian officials as part of your duties with the campaign?” — Butler said he thinks Sessions could “make a credible case that the answer is no,” and that the contacts with the Russian ambassador mirrored his contacts with several dozen other ambassadors he contacted in 2016, as a senator and member of the Senate Armed Services Committee.

Coincidentally, I spoke with a former federal prosecutor yesterday about this topic as well — Andrew McCarthy of National Review, who appeared as the final guest on my show. In a column he wrote just before that appearance, Andy called the perjury allegation “meritless,” both legally and substantively:

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. …

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. …

So, was Sessions’s testimony inaccurate? Sure, especially taken out of context. But was it perjurious? Not even close.

In the serious world, no one would even discuss Sessions’ testimony in terms of perjury. The national news media, however, have rarely been serious over the last several weeks, and Democrats like Chuck Schumer and Nancy Pelosi haven’t been serious in years. Sessions created a political issue, clearly, but even that is predicated on an unfair reading of his testimony in the context the question was asked. Even gaming out perjury prosecution as a hypothetical is a silly exercise, although Bump reaches the correct conclusion at the end of it.

In our interview, I asked Andy about Sessions’ recusal, which he had announced just prior to Andy’s appearance. The pre-emptive recusal appeared reasonable to me as a layman, but Andy had a good question to ask in return: from what, exactly, was Sessions recusing himself? Recusals follow evidence of actual crimes and conflicts (and tort claims in the civil arena), not just suggestions and allegations of them. Be sure to listen to Andy’s full explanation of why he thought recusal was arguably premature in a legal sense, if perhaps ripe in a political sense. Our interview picks up at the 60-minute mark for those who wish to cut directly to it.

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