Don’t Convict Jeff Sessions of Perjury Just Yet
Not all lies, even under oath, are prosecutable crimes.
The surprise guilty plea of Donald Trump campaign aide George Papadopoulos has put Attorney General Jeff Sessions back in the hot seat. A lot of people are starting to roll out the p-word: perjury.
Sessions is once again under scrutiny on Capitol Hill regarding his candor about Russia and the Trump campaign amid revelations that he rejected a suggestion to convene a meeting between Russian President Vladimir Putin and Donald Trump last year.
The Papadopoulos plea states that in a March 31, 2016, meeting of the Trump campaign’s national security team, Papadopoulos expressly raised the possibility of setting up a meeting between Trump and Russian President Vladimir Putin. Sessions was in attendance, and according to news reports, the then-senator personally “shut down” the idea. As the New York Times puts it,
“[Papadopoulos] went into the pitch right away,” said J. D. Gordon, a campaign adviser who attended the meeting. “He said he had a friend in London, the Russian ambassador, who could help set up a meeting with Putin.”
Mr. Trump listened with interest. Mr. Sessions vehemently opposed the idea, Mr. Gordon recalled. “And he said that no one should talk about it,” because Mr. Sessions thought it was a bad idea that he did not want associated with the campaign, he said.
The trouble for Sessions is that he recently testified before Congress that he knew of no collusive Russian contacts with the campaign. In an October hearing before the Senate Judiciary Committee, Sessions had the following exchange with Sen. Lindsey Graham.
Graham asked: “Did you ever overhear a conversation between you and anybody on the campaign who talked about meeting with the Russians?”
Sessions responded: “I have not seen anything that would indicate a collusion with Russians to impact the campaign.”
In the same hearing, Sen. Al Franken pressed Sessions more specifically in this exchange: “You don’t believe that surrogates from the Trump campaign had communications with the Russians? Is that what you’re saying?” Sessions replied, “I did not — and I’m not aware of anyone else that did. And I don’t believe that it happened.”
Both of these statements were made under oath. Hence the mentions of perjury.
People claiming perjury may want to hold their horses longer. Clearly, Sessions has an embarrassing issue he’ll now need to address. Sen. Franken has already written a letter requesting that he clarify his comments. And even Sen. John Cornyn, a fellow Republican, has indicated that he thinks Sessions’s statement in light of the meeting is a “legitimate area of inquiry.”
That said, an actual prosecutor would need to know a whole lot more than we do now before even getting close to the question of perjury.
This isn’t Sessions’s first brush with controversy over his sworn statements. Question arose about his statements during confirmation hearings that he had not met with Russian representatives during the campaign following revelations that he, in fact, had met with Russian Ambassador Sergei Kislyak. Sessions responded strongly to the allegations, claiming he was answering a distinct and narrower question and going on to say — in later sworn testimony: “Let me state this clearly: I have never met with or had any conversations with any Russians or any foreign officials concerning any type of interference with any campaign or election. Further, I have no knowledge of any such conversations by anyone connected to the Trump campaign.” Sessions contended in this earlier instance that he had been taken off guard late in the day by a question from Franken that, though worded broadly, was actually in the narrow context of Trump campaign collusion with Russian interference. He answered the narrow question, not the broad one of whether there had been any contacts.
These latest revelations about Papadopoulos contradict Sessions’s effort to clarify the earlier answers. And it properly induces head-scratching that even in attempting to explain and contextualize his earlier statements, Sessions appears to have left out a meeting in which a staffer suggested a Trump-Putin meeting and in which he personally shut the matter down because it might leak and look bad. This has already proved to be politically embarrassing.
But political embarrassment and perjury are very different animals.
The perjury statutes do not criminalize all false statements before Congress, not even all lies before Congress. As Helen Klein Murillo explains in a Lawfare post on the subject:
Perjury, criminalized at 18 U.S.C. 1621, is perhaps the most recognizable law against lying. The statute makes it a crime to “willfully and contrary to [an] oath state or subscribe any material matter which he does not believe to be true.” It likewise criminalizes doing so in a written statement made under penalty of perjury, and it applies to statements made in federal court or other proceedings under oath, including congressional hearings.
Perjury is extremely difficult to prove. A prosecutor has to show not only that there was a material misstatement of fact, but also that it was done so willfully—that the person knew it was false when they said it.
By far the broadest federal statute criminalizing lying is 18 U.S.C. 1001, which makes it a crime to “knowingly and willfully … make any materially false, fictitious, or fraudulent statement or representation” in the course of “any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government. There’s no requirement that the statement be under oath.
In Section 1001 cases, there is still the requirement both that the statement be a knowing and willful lie, not an error, and that it be on a point material to the testimony.
In other words, for a prosecutor — as opposed to a Twitter user — to allege that Sessions had committed perjury or violated Section 1001, he or she would have to do a lot more than note a discrepancy between his sworn testimony in October and the revelations this week about Papadopoulos’s contacts with Russians during the campaign (and, for that matter, those of Carter Page). For starters, the prosecutor would have to be able to prove beyond a reasonable doubt that the truth resolves any discrepancy in favor of the new revelations, as opposed to Sessions’s prior story. That is, he or she would have to be able to show that Sessions was wrong then and that the news stories are true now. Some of the facts in those news stories are also in the Papadopoulos stipulation of fact, so we know that Mueller thinks he can prove them. But others, including Sessions’s alleged reaction to the idea of a meeting, are not. So the first question would be whether the provable facts are really as bad for Sessions as the apparent facts.
Second and more difficult, a prosecutor would have to be able to prove, also beyond a reasonable doubt, that the falsity of the statement was not an accident, an oversight, or a creature of forgetfulness. People get things wrong all the time, even under oath. A prosecutor who wanted to prosecute Sessions would need to be able to prove that he hadn’t, at the time he gave his testimony, forgotten about George Papadopoulos, only to remember the young advisor later, when the public discussion came to be about him. As the U.S. Attorneys’ Manual explains, “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.”
This is a particularly hard element because Sessions will have an argument — as he did in the last round of concern over whether his testimony was truthful — that his answer was true in the specific context in which he said it. Sessions, after all, was not denying that any Trump surrogates had any contacts with the Russians. He had already, after all, admitted that he had met with Kislyak. And he acknowledged immediately after the above-quoted exchange with Franken that other Trump campaign figures known to have met with the Russians were reasonably called “surrogates.” So he could presumably argue now that the communications with surrogates of which he denied awareness were only those involving collusion with Russian interference in the campaign. Papadopoulos, in the meeting in question, was merely describing an attempt to set up a meeting, he might argue, not trying to collude over emails (though he apparently did that, too) and while Sessions thought this was a terrible idea, he didn’t think it was collusion. So while the facts might contradict the literal words he said to Franken, he might contend, they do not contradict what he meant, and he therefore did not have the requisite criminal intent to violate the statute. Unless a prosecutor can prove unequivocally that this explanation — and any variant of it — is factually false, there will be no perjury case.
Third, a prosecutor would also have to prove that this knowing and willful lie was “material” to the matter at hand. In this case, materiality probably wouldn’t be the hardest element to prove, but it often is. As the Congressional Research Service puts it, “Materiality is perhaps the most nettlesome of perjury’s elements. It is usually said that a statement is material ‘if it has a natural tendency to influence, or is capable of influencing, the decision of the decisionmaking body to whom it is addressed.’” In other words, it wouldn’t be enough to show that Sessions was lying. You’d have to show, again beyond a reasonable doubt, that he was lying on a point that actually matters.
You can’t do these things simply by comparing newspaper stories to what Sessions said before the Judiciary Committee. You can only do them by investigating both the underlying facts and the man’s state of mind at the time he gave the testimony.
All of which is to say that while Sessions will soon face a reckoning over his testimony, it’s not in the first instance a criminal reckoning. His first problem is political: Every time he goes up to Capitol Hill to testify, new revelations seem to contradict what he says. It doesn’t have to be perjury for that to be a serious problem for an attorney general of the United States.
Susan Hennessey is managing editor of Lawfare.
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