Even if Attorney General Jeff Sessions didn’t commit perjury during his confirmation hearing, Sessions could still be in other kinds of legal trouble for failing to tell his Senate colleagues that he met the Russian ambassador on two occasions during the heat of the presidential campaign.
“It is, at best, very misleading testimony,” said Richard Painter, formerly the top ethics lawyer in President George W. Bush’s White House. “I don’t go so far as to say that it’s perjury, but there is a lesser charge of failing to provide accurate information to Congress.”
“A nominee at a confirmation hearing has an obligation to provide full and complete information to Congress,” Painter continued. “Conduct that might be just short of perjury in a deposition in a typical civil case is entirely inappropriate in front of Congress.”
However, such misdemeanor charges are usually only rolled out as part of a plea deal after prosecutors obtain or threaten more serious felony perjury charges. Some lawyers say those would be a stretch in Sessions’ case.
“Perjury is very hard to prove,” said former House Counsel Stan Brand, who worked for the Democrats. “You have to prove two elements that are very difficult in the Congressional context: one is intent and two is an absolutely clear and unambiguous question.”
How Sessions’ statements fit into the typical rubric is somewhat unclear. While Sen. Al Franken’s question to Sessions was fairly clear, it was also a query about his future plans, and therefore almost incapable of generating a direct answer that would amount to perjury.
Sessions’ arguably erroneous statement was the kind of rhetorical detour counsel often tells their clients not to take when testifying: a gratuitous response that wasn’t really called for by the question.
After a wind-up about breaking press reports on alleged contacts between the Trump campaign and Russian agents, Franken asked: “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 replied: “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 Patrick Leahy followed up with a written question asking Sessions if had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?”
Sessions replied, simply: “No.”
During a press conference at the Justice Department Thursday, the attorney general insisted he had no intention to deceive the committee.
“My reply to the question of Sen. Franken was honest and correct as I understood it at the time. I appreciate that some have taken the view that this was a false comment. That is not my intent. That is not correct,” the attorney general declared.
However, later in the exchange with reporters, Sessions said he could not rule out the possibility that he discussed election-related matters during his September meeting with the Russian diplomat, Sergey Kislyak.
“I don’t recall, but most of these ambassadors are pretty gossipy, and….this was in the campaign season, but I don’t recall any specific political discussions,” the attorney general said.
Sessions’ initial denial could be legally problematic if it is contradicted by staffers at the meeting or by other evidence, such as intercepts of Russian reports on what was said, attorneys said.
One unpleasant parallel for Sessions comes from the prolonged confirmation hearings of Attorney General Richard Kleindienst in 1972.
During those hearings, Kleindienst denied that he’d received instructions from anyone at the White House about how to handle a high-profile antitrust investigation into ITT Corp.
“I was not interfered with by anybody at the White House,” he said repeatedly.
A year later, tapes emerged of President Richard Nixon himself instructing Kleindienst to drop the case.
Kleindienst resigned less than a year into his tenure as attorney general. Prosecutors considered indicting him on multiple perjury counts, but he ultimately pled guilty to a misdemeanor charge of contempt of Congress for refusing to answer a question — a charge some considered a poor fit.
“It’s a bastardized version of a false statement charge,” Brand said.
Other prominent government officials have also pled guilty to the same charge, including former CIA Director Richard Helms in 1977 for testimony about CIA operations in Chile and State Department aide Elliott Abrams in 1991 for testimony obscuring aspects of the Iran-Contra affair.
Other officials have gotten a pass for their misleading testimony, including former Director of National Intelligence James Clapper for denying that the government was engaged in widespread surveillance of Americans.
“Does the [National Security Agency] collect any type of data at all on millions or hundreds of millions of Americans?” committee member Sen. Ron Wyden (D-Ore.) asked Clapper during a Senate Intelligence Committee hearing.
“No, sir,” Clapper replied. “There are cases where they could inadvertently perhaps collect [intelligence on Americans], but not wittingly.”
Revelations from NSA leaker Edward Snowden just a few months later made clear that the NSA was sweeping up data on billions and billions of phone calls made by Americans.
Clapper said he misunderstood the question, which he thought referred to surveillance beyond collecting metadata on phone calls.
“My response was clearly erroneous,” he wrote in an apology letter to Congress.
Clapper was repeatedly questioned by lawmakers and the media about his misstatement, but he never faced criminal charges. He stayed in his job until Obama’s final day in office.
When Congressional witnesses face attention-grabbing perjury charges, prosecutors sometimes end up with egg on their faces. In 2010, Major League Baseball pitcher Roger Clemens was indicted for lying in 2008 Congressional testimony where he denied any involvement with steroids.
At a trial in Washington in 2012, jurors acquitted Clemens on all counts.
Veteran defense attorneys said that whatever the chances are that Sessions faces charges over his testimony, they increase if a special prosecutor — especially one from outside the department — is appointed to examine the attorney general’s statements as well as other matters related to alleged Russian influence in the election.
“As a defense attorney, I’d rather have a U.S. attorney,” Brand said.
When Sessions recused himself Thursday from investigations related to the 2016 presidential campaign, he apparently also surrendered any role in deciding whether a special prosecutor takes over that probe and any inquiry into Sessions testimony.
For the moment, acting Deputy Attorney General Dana Boente will oversee those matters. However, the ultimate decision could be made by the man Trump has nominated to hold that No. 2 job on a permanent basis, Rod Rosenstein.
Rosenstein faces a Senate confirmation hearing Tuesday where Sessions’ testimony and the potential for a special prosecutor are now expected to take center stage.
Some legal experts say the independent counsel probe that could spell the most trouble for Sessions is the only appropriate course now that his conduct is in question.
“Sessions recused himself. But his subordinates cannot conduct the investigation of their boss,” said New York University law professor Stephen Gillers, a legal ethics specialist. “They are not independent. A special prosecutor, who cannot be removed except for cause, is needed.”
By: Josh Gerstein