Attorneys General have been known to lie. Last August former Pennsylvania Attorney General Kathleen Kane was convicted of lying to a state grand jury. As we reported last year, Kane’s downfall was tied to a web of political corruption that rocked that state.
On March 2, 2017, U.S. Attorney General Jeff Sessions acknowledged that he had given “mistaken” testimony to Congress about possible contacts between President Trump’s campaign staff and Russian officials. The attorney general said he knew nothing about any such contacts. It was later disclosed through media outlets that Sessions had met twice with the Russian ambassador to the U.S. while he served as a “Trump surrogate” during the presidential campaign.
AG’s Recuses Self from Investigation
Some members of Congress and even some legal scholars immediately said Sessions should be charged with perjury for lying to lawmakers during his confirmation hearings. Others said the attorney general should resign. Sessions did neither. Instead, he elected to recuse himself from any investigations by the Justice Department into Trump/Russia connections. The attorney general’s recusal decision reportedly sent the president into a “ballistic” outrage that had his own staff angrily pointing accusatory fingers at each other for the public relations nightmare.
The question then is whether the attorney general should be charged with perjury because of the wrongful testimony he gave to Congress?
Perjury Charges Unlikely
Criminal charges are highly unlikely.
In a 2007 law review article, former Texas Assistant U.S. Attorney P.J. Meiti made this observation: “Almost no one is prosecuted for lying to Congress. In fact, only six people have been convicted of perjury or related charges in relation to Congress in the last sixty years.”
The federal perjury statute can be found at 18 U.S.C. § 1621. More than six decades ago the U.S. Supreme Court in United States v. Williams said this statute was enacted “in an effort to keep the course of justice from the pollution of perjury.” The court said the statute is designed to punish only a witness who “willfully … states … any material matter which he does not believe to be true.”
Kevin McMunigal teaches criminal law at Case Western Reserve University School of Law. The former assistant U.S. attorney has pointed out to media outlets that the federal perjury statute has four elements: a statement made under oath, that is material or significant, false, and the witness knows it is false.
Lack of Preparation or Too Much Preparation?
The troubling aspect of Sessions’ testimony is that he must have known (or certainly should have known) that he would be asked questions about the sordid Trump/Russian connections during the 2016 presidential campaign. The attorney general was one of the president’s earliest supporters and frequently communicated with the media as a “surrogate” for the Trump campaign. He was also a former member of the Senate Judiciary Committee—the very committee that approved his nomination as attorney general. He had to know the questions of interest that would be posed to him, especially by Democrats on the committee drilling down on the Trump/Russia connections.
Unless he is in the early stages of dementia, Sessions knew before testifying before Congress that he had met at least twice with Russian Ambassador Sergey Kislyak while he served as a surrogate to the Trump campaign.
As a former state attorney general and a member of the U.S. Senate, the attorney general had to know that that was relevant information he should provide at his confirmation hearings if asked.
He was also aware as a U.S. Senator that in October 2016 seventeen U.S. intelligence agencies had concluded that Russia had interfered with the presidential campaign to defeat Hillary Clinton and help get Trump elected. Directly or indirectly, Sessions was a beneficiary of that Russian interference because it helped get his candidate elected—the same candidate who nominated him to be Attorney General of the United States.
Attorney General Should Resign
Thus, a reasonable conclusion can be drawn that Attorney General Sessions gave, under oath, material and significant testimony he knew to be false. It does not matter if the attorney general did not believe his two contacts with Ambassador Kislyak were either material or significant because the two did not discuss anything of substance. It was the inherent right of members of the Judiciary Committee to determine what, if any, materiality or significance should be attached to those contacts.
Given these facts and reasonable conclusions, the question a prosecutor would have to come to terms with is this: did Attorney General Sessions intentionally give material testimony he knew to be false. Given the fuzziness attached to the AG’s recent spin regarding his statements, it is unlikely a prosecutor would move forward with criminal prosecution unless Sessions made the false statements to intentionally conceal some sort of collusion between the Trump presidential campaign and Russian government operatives.
Integrity and Reputation Lost
At this juncture, we do not know whether proof exists to support a finding that Sessions intended to give false testimony to protect the Trump campaign; however, we do believe there is more than enough probable cause to support the conclusion that he knowingly gave false testimony to Congress, failed to correct the testimony, and should resign because of it.
Attorney General Jeff Sessions no longer has unvarnished professional integrity and sound judgment. Whatever the real reason for the false testimony, it is undeniable that the attorney general gave false testimony. That alone demands resignation.