Jed Shugerman // 6/13/17 //
Cross-posted from Shugerblog
In March, I posted that I concluded Sessions had already violated federal law with a felony false statement before the Senate for false statements, failing to disclose two meetings with Russian ambassador Kislyak. The allegation today is that there was a third meeting in April 2016 that was not disclosed. Review the actual questions and Sessions’s answers. A third undisclosed meeting should be a third strike, given that the first two misleading or false statements required more disclosure, not evasive parsing.
A quick review of the basic facts:
Sessions’s answer was false: “Senator Franken, 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, and I’m unable to comment on it.”
If we’re being generous, it is not easy to explain everything you mean in live testimony. It arguably could be unclear what he meant by “the Russians” in the moment, but the answer itself was untrue. What normally happens during confirmation hearings is that a nominee reviews all of his or her testimony with lawyers afterward to make sure he or she did not accidentally mislead or lie. The nominee has days to amend their testimony, to give written clarifications if anything was untrue or misleading. If he or she does, then the problem is resolved. There is no “gotcha” for the earlier false statement, because the nominees have ample opportunity on their own to clarify.
Not only did Sessions fail to correct his false or misleading answer, but he continued to mislead when given a direct opportunity to clarify or disclose one week later in a written answer to Sen. Leahy.
First, on Jan. 12 (two days after Franken’s question), the Washington Post broke a huge story about national security adviser-designate Michael Flynn’s interactions with Russia’s Ambassador Kislyak. On Jan. 15, Pence appears on “Face the Nation” to discuss Kislyak. At this point, every nominee has been reminded about Kislyak, that he was a really big deal, and that meeting him is a really big deal. If Sessions had somehow forgotten meeting Kislyak, he was undoubtedly reminded with a ton of bricks from the media storm around Flynn. It was already problematic that Sessions failed to correct his answer on his own, but the problem is worse.
On Jan. 17, five days after the Washington Post story, and a week after the false answer to Franken, Sen. Leahy, the ranking Democrat on the Judiciary Committee, sends Sessions a letterasking about Russia, among other things:
Several of the President-Elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after Election Day?
There’s the case for perjury/ criminal false statement. Now let me be clear: by itself, the answer to Leahy appears to have wiggle room. But you cannot read the answer to Leahy by itself. It may be a second lie on its own, but more clearly, it is a failure to clarify the false statement in the live testimony, it continues to mislead, and it builds a strong case for intent to mislead and deceive. Keep in mind, there are reports that Sessions did discuss the 2016 election with Kislyak, so in fact, both statements under oath may be false. In the very least, Sessions should have clarified his answer to Franken on his own initiative, especially once the Flynn/Kislyak story exploded two days later. But Leahy gave Sessions a gift, a fairly direct opportunity to disclose, clarify and correct a false statement, but Sessions ignored that opportunity, which already built a strong case of a deliberate false statement.
Today’s testimony could make that case too strong for Republicans to ignore, but I’m not holding my breath. The other audience today is Bob Mueller and his team of prosecutors.
Of course, that’s only one enormous legal problem on today’s docket. Sessions also has to answer for the Comey firing, about his failure to follow his recusal, about what he knew of Comey’s Russia investigation (including the timing of Comey’s request for more resources to investigate Flynn and Russia contacts), and whether Sessions participated in obstruction of justice. And the third issue is whether Trump can fire Mueller. I’m also looking to see if Sessions says that Trump is invoking executive privilege on any matters (I’d guess yes) and if Sessions would invoke the privilege against self-incrimination (I’d guess no). And I’m looking for the tone and body language from the Senate Republicans. Are there any more signs that they are breaking from the party line? Last week’s Comey session had some positive indications, but I hope they are approaching Sessions’s earlier conduct with sharp criticism and larger concerns.