01:32 - Source: CNN
The 8 words that got Jeff Sessions into trouble

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Danny Cevallos: Perjury charges against Attorney General Jeff Sessions are unlikely

It would be difficult to prove willful intent to give misleading testimony, he says

Editor’s Note: Danny Cevallos (@CevallosLaw) is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

CNN —  

Did Attorney General Jeff Sessions perjure himself in testimony at his Senate confirmation hearing? On Thursday, Sessions recused himself from any investigation of the campaign and has indicated he will send a clarification note to the Senate Judiciary Committee.

Sessions met with a Russian diplomat twice last year in Washington – the same one that cost Michael Flynn his national security adviser job when Flynn failed to disclose the contact to Vice President Mike Pence.

Here’s the reason this is suddenly controversial: Sessions did not mention his meetings with the Russian representative during his confirmation hearing, and testified that he knew of no contacts between Russians and Trump surrogates.

Even before the hearing, a questionnaire from Sen. Patrick Leahy, a Democratic member of the Judiciary Committee, asked Sessions if he had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” The answer was “no.”

At the Judiciary Committee confirmation hearing, Sen. Al Franken pointedly asked Sessions a hypothetical: What would he do if he learned that anyone affiliated with the Trump campaign communicated with the Russian government during the campaign?

“Sen. Franken,” Sessions replied, “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.” On Thursday, the attorney general recused himself from Trump campaign investigations.

Some are already intimating that Sessions might have perjured himself before Congress.

Democratic Rep. Luis Gutierrez of Illinois has called for the attorney general’s immediate resignation and suggested that Sessions should go to jail.

Others are pointing to his accusations of perjury against President Bill Clinton from decades ago as a form of hypocrisy.

Hypocrisy it may be. Hypocrisy, however, is not illegal. In Washington, it’s practically a local dialect – a patois, if you will. Perjury, on the other hand, is a crime, and a serious allegation.

So did Sessions perjure himself before Congress?

The reality is that false, inaccurate or incomplete testimony, whether in court or before Congress, is a common occurrence. More is required to support a perjury charge, and even when the additional elements are present, perjury is rarely prosecuted.

Just as in court, it’s also illegal to lie under oath to Congress. The “general perjury” statute, or Section 1621, criminalizes testifying 1) under oath, 2) giving false testimony, 3) concerning a material matter, with the 4) willful intent to provide false testimony.

Another criminal statute, known as Section 1001, does not even require an oath. It criminalizes false statements or concealment within the jurisdiction of any branch of the federal government. Criminal defense attorneys are very familiar with Section 1001.

One of the FBI’s favorite tactics is to show up at a potential witness’s job, ask him a few questions it already knows the answers to, then, when the poor sap tries to massage the truth a little to protect himself – whammo. He’s just committed a federal crime. He may have done nothing else wrong, but the feds now have leverage to make him testify against his client, partner, Mafioso, etc.

As broad as the scope of these laws sound, there’s a lot of wiggle room, especially when you try to parse actual words, and try to guess at the intent behind them.

For example, when a line of questioning is so vague it’s “fundamentally ambiguous,” the answers may be insufficient to support the perjury conviction.

The same is true of fundamentally ambiguous statements in response to questions. Fundamental ambiguity means that reasonable people cannot arrive at a mutual understanding of the question or answer.

In Sessions’ situation, some will think he meant that he had zero contact with the Russian diplomat whatsoever. Others will understand him to mean that he had no contact in his capacity as a Trump surrogate but possibly as a member of Congress. If Franken’s question was equally ambiguous, then Sessions’ answers are even more insulated.

But even if that statement about contact with Russians is considered “false,” he must have made it with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.

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Frankly, Franken’s exchange is less damaging to Sessions than the Leahy questionnaire. Leahy is a former prosecutor, and it shows. His interrogatory is clever: It uses no more words than necessary, yet it’s broad in scope and leaves few escape hatches. Had Sessions “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?” Yes. Yes, he had, right?

Well, maybe not. He might have been “in contact,” but was it about the election? Would only a passing mention about this ubiquitous topic of conversation be considered contact “about” the election? Moreover, what if Sessions’ “no” answer was just the result of confusion, mistake or ambiguity?

The truth is, “truth” can be an elusive concept, just like “lies” or “fake.” The law recognizes that people will not always give complete statements, or that they will give incorrect or inaccurate answers under oath. The law also recognizes that self-preservation is such a powerful instinct that people unconsciously stretch the truth or tell the version they want to tell. Even under oath, in the most solemn of occasions, people will later argue their words meant something different – sometimes even the meaning and intent behind a word like “is” is debatable.

It’s why perjury must remain a crime that is often threatened but rarely prosecuted.