Did Jeff Sessions Mislead Congress?

The most recent controversy deals with Attorney General Jeff Sessions:  Was he part of the Trump campaign’s contact with Russian government officials?  Did he lie about it to the Senate Committee during his confirmation hearing?

You’ll recall that Michael Flynn lost his job last month as National Security Advisor after it was revealed that, during the Presidential transition, he spoke with Russian Ambassador Sergey Kislyak about US sanctions against Russia.

Likewise, Trump’s campaign aide Paul Manafort left the campaign in August, shortly after a scandal broke relating to Manafort’s relationship with pro-Russian elements in Ukraine.

And various investigations are currently ongoing into both Russia’s apparent intervention in the presidential election, as well as the extent and nature of contacts between Trump’s campaign staff and Russian officials.  The Administration’s approach toward these investigations has raised red flags, from Attorney General Sessions’ earlier refusals to recuse himself from oversight of these investigations (notwithstanding his own involvement with the Trump campaign) to Trump’s Chief of Staff Reince Priebus leaning on the FBI in relation to these investigations.

The newest revelations, however, are that Jeff Sessions actually met with Kislyak twice while he was involved with the Trump campaign.  This surprised many, given that, during his testimony at his confirmation hearing, he denied contact with the Russians.

Sessions now claims that he was meeting with the Russian Ambassador in his capacity as a member of the Senate Armed Services Committee.  (Claire McCaskill, another long-time member of the Committee, expressed scepticism on Twitter by highlighting that she’s never met with the Russian Ambassador.  When it came to light that she *had* met the Russian Ambassador on occasion, she clarified that none were one-on-one.  Certain news stories have attempted to draw an equivalency between McCaskill’s omission of different types of meetings from her 140-character tweet, and Sessions’ own omission of meetings with the Russian Ambassador from his sworn testimony at his confirmation hearing.  Clearly, one of these things is not like the other.)

These new revelations have resulted in various calls for Sessions to not only recuse himself – which he finally did – but also to resign.  House Minority Leader Nancy Pelosi, saying that he “lied under oath”, argued that he is not fit for his office.  Senate Minority Leader Chuck Schumer held a press conference calling for Sessions to resign, coming short of accusing Sessions of actual perjury, but highlighting that Sessions should have disclosed and qualified his meetings with the Russian Ambassador when denying contact with the Russians, or alternative corrected and clarified the record afterward, as is normal for candidates upon receiving and reviewing the transcript of their confirmation hearing.  Schumer’s demand for resignation isn’t rooted in a contention that Sessions *necessarily* broke the law, but the omission is sufficient to cast a shadow over Sessions, to the point that his credibility falls short of that required for the office of the Attorney General.

If you looked at Breitbart’s website on Thursday, you would have seen their first five stories seeking to vindicate Sessions, including a California trial lawyer asserting that Sessions “absolutely” did not perjure himself.

What Sessions actually said, in response to a question from Senator Franken about what he would do in the event of investigations into the campaign’s contact with Russian officials, is this:

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.

So what are the issues here?

Firstly, if there was any question before as to whether or not Sessions could impartially oversee an investigation into the Trump campaign’s communications with Russia during that time period, that has been put to rest.  To Sessions’ credit, he has now agreed to recuse himself – though it does raise some optical questions about his earlier refusals, in light of the fact that he himself had communicated directly with the Russian Ambassador during the timeframe under investigation.  It is likely that these communications would have come under investigative scrutiny, and even before the public was aware of this, he still would have known.

Secondly, the question of whether or not Sessions deliberately misled the Senate Committee is of critical importance.  There is some question as to the bona fides of his explanation that he was meeting with the Ambassador on behalf of the Committee, as distinct from in his capacity as a member of the Trump campaign, but – if true – it could be a legally acceptable clarification:  Yes, I met with the Russian Ambassador, but the question dealt with campaign issues, and I never “had communications with the Russians” about the subject matter of the question.  The law is nuanced, and the California trial lawyer cited by Breitbart is almost certainly correct that this contextual distinction (again, if true) would satisfactorily insulate him from perjury allegations.  (This is, in the main, separate from the high standard of proactive disclosure that Schumer suggests is necessary for an Attorney General, and Sessions himself admitted that in hindsight he should have made the clarifying remarks as Schumer contends.)

It is clear from the context of Sessions’ response that he was discussing the campaign’s communications with the Russians, and – so long as he never had any conversations with the Russians about the campaign or his role in the campaign – omitting such communications would not be inconsistent with the spirit of what he said.  However, if there was discussion of the campaign or his role in it, even as ancillary discussion to a meeting about Senate business, then the contextual nuance that he relies upon entirely loses its power, and the ‘spirit’ of what he said (in addition to the ‘letter’ of his language) becomes entirely false and misleading.

And there’s the rub:  When asked if he had discussed the election or Mr. Trump with Kislyak, he gave a Flynn-esque “I don’t recall” response, acknowledging that it was campaign season and that Ambassadors are “pretty gossipy”.  It also bears noting that one of the meetings occurred one day after a Trump rally in which Trump gave high praise to Vladimir Putin – it seems unlikely that the campaign would not have come up in a meeting between a member of Trump’s inner circle and the Russian Ambassador the very next day.

Which would have the result that, yes, he had a conversation about the political campaign with the Russian Ambassador, and then later expressly denied having done so, under oath.

Did Sessions perjure himself?  Maybe, but perjury is difficult to prove.  One would need to establish not only that what he said was, in its full context, factually untrue, but also that he intended to convey a falsehood.  Even if it can be proven that he discussed campaign issues (and, as we discovered in the Flynn saga, conversations the Russian Ambassador may not be private), “It slipped my mind at the time” could be an adequate defence to a perjury charge.

But did Sessions mislead?  That’s a different question.  Even while stating that he doesn’t “recall”, he acknowledges the plausibility that the election campaign came up as a topic in the conversation.  Even assuming that everything about his clarification and response is true, the fact that he doesn’t know if it came up actually detracts from the ‘innocent explanation’ he poses.  If someone asks me about communications with ‘John’ on the subject of ‘x’, and I know I talked to John about y, but don’t recall if x came up…then simply answering that I never “had communications with” John would be overtly dishonest and misleading.

Indeed, in its full context, other answers would have made far more sense:  The point Sessions was trying to make, when denying contact with the Russians, was that there probably wasn’t inappropriate contact between Russia and the campaign, because he likely would have been in on it if there were.  It would have been more persuasive, more compelling, and – assuming no impropriety in the discussion – more honest to say something to the effect of “I have been called a surrogate a time or two in that campaign, but I’m unaware of any improper communications between the campaign and the Russians, and I even met with the Russian Ambassador on Senate business in September, so one would think that I would be aware if there was any improper relationship there.”  The only reasons not to say something like that would be (a) that he is worried about follow-up inquiries into the content of the discussion (i.e. he wanted to conceal the subject matter of the conversation) and/or (b) that he is worried about the optics of having met with the Russian Ambassador at all (i.e. he wanted to conceal the fact of the meetings in the first place).

The Verdict

When certain Democrats are going so far as to accuse Sessions of perjury, they are probably overextending based on the facts currently on the record.  However, based on Sessions’ clarification and explanation, it is clear that his testimony before the Senate was, at minimum, misleading.  It was literally untrue, and even giving Sessions the benefit of every doubt, it amounts to an unqualified denial, even contextually, of facts which Sessions now claims uncertainty.

Accordingly, it is difficult at this juncture to contend that Sessions was forthright at his confirmation hearing, and Schumer, for his part, is relying on a sound factual basis when he calls for Sessions’ resignation.

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