KARLA UTSET—In 1998, the House of Representatives approved two articles of impeachment against then President Bill Clinton. The charges included obstruction of justice and lying under oath to a federal grand jury. The perjury charge was regarding statements made by President Clinton during Paula Jones’ sexual harassment suit against Clinton and in connection with the now-infamous Monica Lewinsky scandal. At the time, Sessions, a Senator from Alabama, was very outspoken in favoring Clinton’s removal from office and voted to convict Clinton under both charges, stating “it is crucial to our system of justice that we demand the truth.” The prosecution ultimately failed to obtain the two-third majority votes from the Senate needed to convict President Clinton.
During his confirmation hearing for the position of Attorney General on January 10, 2017, Jeff Sessions was met with a hypothetical question by Senator Al Franken of Minnesota: “if there is evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?” Although this did not seem like a direct inquiry into Sessions’ own communications with the Russians, Sessions replied under oath by saying, “Senator Franken, I am 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.” In fact, Sessions did have communications with the Russians, twice. The first communication was in July of 2016 during the Republican National Convention at an event for diplomats, where Sessions met and had an informal discussion with the Russian Ambassador to the United States, Sergey Kislyak. Sessions’ second encounter with Kislyak came in the form of a more formal one-on-one meeting between the two in Sessions’ Senate office in September. Additionally, before the confirmation hearing, Sessions received a questionnaire from Senator Patrick Leahy, a member of the Judiciary Committee, asking whether Sessions 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 answered, “no.” Kislyak is the same Russian diplomat that led to Michael Flynn losing his national security adviser position when he did not reveal his contacts with Kislyak to Vice President Mike Pence.
It is illegal to lie to Congress under oath. While there is a Constitutional provision, known as the Speech or Debate Clause, “which protects members of Congress from being questioned or arrested for statements they make in their official capacities,” the clause has limits, excluding “treason, felony, and breach of the peace” – and perjury is a felony. Section 1621, known as the “general perjury” statute, criminalizes testifying “1) under oath, 2) giving false testimony, 3) concerning a material matter, with the 4) willful intent to provide false testimony.” Section 1001, another criminal statute, criminalizes “false statements or concealment within the jurisdiction of any branch of the federal government” and does not require an oath. So, did Jeff Sessions commit perjury?
Several congressmen and women believe Sessions did commit perjury and have since requested he resign; others simply requested his recusal from investigations into Russia’s probing into the 2016 Presidential election and possible contacts with the Trump campaign. When President Trump was asked if Sessions testified truthfully during his confirmation hearing, Trump said, “I think he probably did.” Sessions himself has said his answer was “honest and correct as I understood at the time.” Although Sessions ultimately decided to recuse himself from any investigation into Russia’s connection to the 2016 Presidential election, he defends himself by highlighting that context is important in evaluating his response, arguing that “his meeting with Russian Ambassador Kislyak was in his official capacity and his answer to Franken was in the context of the campaign.” Department of Justice officials have come to Sessions’ defense, echoing his reasoning that the context of the question was whether he was having those contacts as a campaign surrogate, not in his dual-role as Senator and Trump surrogate. Sessions has since said he does not recall what his discussions with Keslyak were in regards to.
In reality, “perjury is rarely prosecuted” and inaccurate or incomplete statements are common before Congress and in court. In 1993, a decision by the Supreme Court said “perjury must include the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory,” and a 1990 decision by the Second Circuit Court of Appeals stated answers to questions so vague they are fundamentally ambiguous “are insufficient to support the perjury conviction.” Franken’s hypothetical question to Sessions could potentially be viewed as ambiguous in light of Sessions’ multiple roles during the campaign season, making Sessions’ interpretation of and subsequent response to the question considered acceptable. If the question were deemed “fundamentally ambiguous,” it would seem unclear whether Sessions committed perjury, and it does not seem we will have clarity unless and until the content of Sessions’ discussions with Kislyak during those two meetings last year is somehow disclosed. Considering Sessions’ faulty memory regarding these two meetings, it does not seem like we will be getting an answer any time soon. In the meantime, the American Civil Liberties Union (ACLU) has filed an ethics complaint against Jeff Sessions, requesting the Alabama State Bar, which Sessions has been a member of since 1973, to inquire into the Attorney General’s possible ethical rules violation during his confirmation hearing.
