March 03, 2017
A perjury investigation could be the next hurdle faced by Attorney General Jeff Sessions, with Democrats and civil liberties groups unimpressed by his decision to recuse himself from any investigations involving the presidential campaigns.
But the question of whether the attorney general committed perjury when he denied during his Senate confirmation hearing that he had contact with any Russian officials during the course of the Trump campaign is a tricky one, according to legal analysts who raised doubts about the potential for any such charges to stick.
Sessions, an early and ardent supporter of Trump during the presidential campaign, announced his plan Thursday to recuse himself “from any existing or future investigations of any matters related in any way to the campaign for president of the United States.”
But he also addressed his failure to disclose his two meetings with Russian Ambassador Sergey Kislyak when he was questioned by Sen. Al Franken, Minnesota Democrat, during his confirmation hearing, saying that he felt his response “was honest and correct as I understood it at the time.”
House Minority Leader Nancy Pelosi said Thursday she was unimpressed by Sessions’ “narrow recusal and his sorry attempt to explain away his perjury.”
“He is clearly trying to maintain his ability to control the larger investigation into the sprawling personal, political and financial grip Russia has on the Trump administration,” the California Democrat said. “Attorney General Sessions’ lies to the Senate and to the American people make him unfit to serve as the chief law enforcement officer of our country. He must resign immediately.”
Democrats on the House Judiciary Committee wrote to FBI Director James Comey and the U.S. attorney for the District of Columbia on Thursday to ask them to launch a criminal investigation into whether Sessions’ statements violated laws regarding perjury and lying to Congress.
But legal statutes make it difficult to pursue and prove perjury claims, leaving some legal analysts to say that calls for the attorney general’s resignation based on his omitted disclosures to Congress are premature and overblown.
“It is certainly reasonable to open an investigation just on the surface of the comments, but perjury is impacted by intent, and there is room to argue he had no intent to lie because he was hyperfocused on what the question was,” said Mark Zaid, a Washington lawyer specializing in government accountability.
“Meaning when asked about contacts with the Russians, was he thinking of his role solely as a surrogate for the Trump team or in his capacity as a U.S. senator on the Armed Services Committee? These cases are very difficult,” Zaid explained.
During the confirmation hearing, Franken asked Sessions, “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 that he was “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,” he said at the time.
On Thursday Sessions said he was taken aback by Franken’s question and did not intend to give false information.
“I was taken back a little bit about this new information, this allegation that surrogates, and I had been called a surrogate for Donald Trump — had been meeting continuously with Russian officials,” Sessions said. “That struck me very hard, and that is what I focused my answer on. In retrospect, I should have slowed down and said, ‘But I did meet one Russian official a couple of times — that would be the ambassador.’ “
Describing the elements required for an action to be considered perjury, Robert Barnes, a California-based trial attorney whose practice focuses on tax, civil rights and First Amendment law, said that it’s clear Sessions did not perjure himself during the hearing.
“Anyone reading the actual exchange can see Sessions was referring to no communications ‘as a surrogate’ just as the question’s very long preamble specifically referenced the focus of the question to that subject matter,” wrote Barnes in an op-ed published by Law Newz. “Nothing about Sessions’ answer was false, nor could it be construed to be materially false or willfully false, or even false at all.”
U.S. attorney guidelines on general perjury statute 18 U.S.C. 1621 state that “the government must demonstrate the defendant voluntarily made the false statement with knowledge of its falsity. If the defendant believed his or her statement to be true when it was made, even though it was false, this essential element will not have been proven.”
Despite the difficulties in pursuing such a charge, the Executive Director of the left leaning organization American Civil Liberties Union, Anthony Romero said Thursday that there must be an investigation into whether or not Sessions committed perjury.
“If senators of both parties allow an attorney general nominee to plainly lie under oath with no repercussions, they will render our government’s cabinet confirmation process no more than kabuki theater,” Romero said in a statement issued ahead of the attorney general’s new conference.
“The American people deserve a full investigation into whether Sessions perjured himself and if he is indeed fit to serve as our nation’s highest law enforcement official. No one is above the law — certainly not those sworn to uphold it,” he said.
But David Rehr, a professor at George Mason University’s Antonin Scalia Law School, characterized calls for further investigation and perjury charges as simply a partisan frenzy.
“My own view is that the president’s opponents are looking for every device possible to prevent him from enacting his agenda — and I think this is part of it,” Rehr said. “Had the national security people who worked for President Obama known that the Russians were involved in the election, they would have released specific items and allegations before the election. None of that occurred.”
But others felt Sessions’ actions did rise to the level of requiring his dismissal. Richard Painter, a White House ethics lawyer under George W. Bush and professor at the University of Minnesota Law School, compared Sessions’ behavior to that of Richard Kleindienst, who, during his 1972 confirmation hearing to be attorney general under President Richard Nixon, provided answers that later led him to plead guilty to a misdemeanor crime for failing to testify fully to Congress.
“Once again, we see an attorney general trying to explain away misleading testimony in his own confirmation hearing,” Painter wrote in an op-ed published Thursday in The New York Times.
Noting that Trump had already fired National Security Adviser Michael Flynn for misleading Vice President Mike Pence about his conversations with Russian officials, Painter called Sessions’ actions “at least as serious.”
“We do not yet know all the facts, but we know enough to see that Attorney General Sessions has to go as well,” Painter wrote.