What had the potential to be a corner-turning week for the President was marred late Wednesday, and for the last few days, by revelations that Attorney General Jeff Sessions, while a Senator, met on two occasions with the Russian Ambassador during the 2016 election. This was newsworthy because first, there is concern that perhaps Sessions had conversations about the campaign, the election, or a future Trump foreign policy; and second, Attorney General Sessions had claimed during his Senate testimony, and in written responses to questions, that he did not have any contact with Russian officials during the campaign. While General Sessions has now recused himself from certain Russia-related investigations, some Democrats are calling for his resignation. Others are saying he may have committed a crime. Before Democrats savor the opportunity to chant “Lock Him Up!,” consider the applicable criminal laws more closely.
Is it a crime to give false or misleading testimony to a congressional committee? Yes, and no. Two statutes are relevant. One is the general perjury statute, 18 U.S.C. 1621, which prohibits “willfully” giving a statement under oath that the witness “does not believe to be true.” It is punishable by up to five years in prison. The other statute is the false statements statute, 18 U.S.C. 1001. Section 1001 provides that whoever, “in any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal Government “knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement or representation” or “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry” commits an offense punishable by up to five years in prison.
So, to be precise, it is a crime to give a false statement to a congressional committee (whether or not under oath), but only where the statement is made knowingly and willfully. Statements made with a faulty memory, or when the witness is confused about what is being asked, or that are simply mistaken, are not criminal. See United States v. Dunnigan (with respect to perjury). That is why the context and circumstances in which these statements are made matter a great deal, because they bear directly on Sessions’s state of mind and thus the mens rea elements of the statutes.
General Sessions appears now to be claiming that he believed that the questions he was asked referred only to whether he met with the Russian Ambassador about the campaign — that is, other than in his capacity as a Senator and a member of the Armed Services Committee. General Sessions has claimed that he could not recall the substance of the conversations (strange, given the other details he seemed to remember; and if he cannot recall the substance of the conversation, how does he know he did not discuss the campaign or the election?). Still, if his assertion now is made in good faith, that would likely be enough to negate the mens rea of the perjury and false statements statutes, meaning those provisions could not be proven beyond a reasonable doubt.
That is probably the likely result here. It is not unusual for a witness to give statements before a congressional committee, or during a government investigation, that may be misleading or incomplete. Giving the witness an opportunity to walk back, and explain, the statement more fully should usually be sufficient to satisfy the investigating entity in Congress, unless some intervening harm has been done by the earlier statement (and that does not appear to be the case here). It is therefore exceedingly rare that someone will be prosecuted for lying to Congress. That is typically less true when applying section 1001 in the context of a criminal investigation being conducted by a law enforcement agency, and section 1001 is often used as a basis for prosecution. Moreover, as the Supreme Court held in Brogan v. United States, section 1001’s text does not leave room for an “exculpatory no.” Still, federal prosecutors must consider the strength and plausibility of the defendant’s explanation of what he believed he was being asked, in light of all of the surrounding circumstances. And in many cases — including this one — the explanation will not be an implausible one.
One may not accept General Sessions’ after-the-fact explanation as being truthful, but if it is, he is not guilty of a crime. Of course, there are two very distinct possible explanations here: is it that, at the time, Senator Sessions did not remember his meetings with the Ambassador, or that he remembered but did not think those meetings were covered by the questions asked? Either explanation could serve as a basis for avoiding criminal liability. But note that those are very different explanations, and both cannot be true.
One other issue has arisen, though it would be relevant only if we are seriously talking about a federal prosecution here (which, again, I think is highly unlikely). Would then-Senator Sessions be protected in committee by the Speech or Debate Clause of Article I, section 6 of the Constitution? More on that in a subsequent post.
It seems unlikely that Sessions is at the heart of the Russia-contacts controversy. Making him a target may be satisfying to those who did not want him to be AG in the first place, but it likely will not yield much. A better rabbit hole to explore might be this: did anyone in the campaign or the Trump transition instruct, command, induce, or request that staff and officials deny contacts with the Russians if they are ever asked? If so, the range of potential criminality with in the Administration could greatly expand. Will an investigation pursue that question?