As often seems the case in Washington, the controversy surrounding the meetings of then Senator Jeff Sessions with the Russian Ambassador has quickly descended into a feeding frenzy. When interviewed shortly after the disclosure, I stated that Attorney General Sessions should recuse himself and clarify his testimony. Late this afternoon, Sessions promised to do precisely that. However, the over-hearted rhetoric has continued with calls for Sessions to resign or even be criminally charged. People are getting ahead of their skis on this issue, particularly in claiming that this is the same type of controversy that led to the criminal charges against former Attorney General Richard G. Kleindienst.
Senate Minority Leader Charles Schumer (N.Y.) and House Minority Leader Nancy Pelosi (Calif.) have insisted that Sessions should resign. I do not see the basis for such a resignation anymore than I saw the compelling case for a perjury charge. Here is the exchange where Senator Al Franken raises the issue of continual campaign communications between surrogates and the Russians. Sessions said that he responded to the breaking news over collusion on the campaign:
That is not the model of clarity and certainly not the stuff that a perjury case is made of. Here is the language of the perjury provision:
18 U.S. Code § 1621 – Perjury generally
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.
Sessions had staffers present in the Senate meeting (the other encounter followed a speech at the Republican Convention) and has stated that the meeting was at the Russian’s request and concerned foreign policy disputes.
Of course, there are other charges like misleading Congress and “misleading” is defined broadly under federal law:
the term “misleading conduct” means—
(A) knowingly making a false statement;
(B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement;
(C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
(D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
(E) knowingly using a trick, scheme, or device with intent to mislead;
Nevertheless, there is still a requirement of intentional conduct. Here Sessions is saying that he responded to the news controversy about campaign interests.
Some have suggested that this is, at a minimum, a failure to give full and accurate testimony to the Senate, the basis for the misdemeanor charge against Richard G. Kleindienst. In his confirmation hearing, Kleindienst was asked about whether anyone had spoken to him about the antitrust case against International Telephone and Telegraph Corporation (I.T.T.). He said that he had not. Later Leon Jaworski revealed a phone call in which Nixon told Kleindiesnt to drop the I.T.T. case. Kleindienst insisted that he had not though the question was open ended but rather confirmed to a certain period.
The Kleindienst charge came out of a broader Watergate investigation and directly related to an attempt of the President to scuttle the case against I.T.T. Ironically, Sessions responded to the most serious aspect of the question over campaign coordination or communications with the Russians. In this circumstance, Sessions answered the specific allegation in the media as opposed to whether he met with any Russian. I think he would have been wise to say that he occasionally meets with diplomats, including Russians, as part of his Senatorial functions. Yet, as shown by the tweet by Sen. Claire McCaskill in denying any meetings with the Russian Ambassador (but later recalling two such meetings, it is easy to err in such comments. I do not believe that Sen. McCaskill was trying to mislead and I have not reason to assume the contrary with regard to then Sen. Sessions.
Various attorneys general have faced such allegations of perjury. For example, former attorney general Eric Holder was accused by critics of possible perjury when he told Congress that he was not involved in the prosecution of a journalist for the publication of classier information. However, it was later revealed that he signed the warrant naming journalist James Rosen as a potential co-conspirator. The Justice Department parsed the words of what “prosecution” meant in the question and some experts questioned the basis for such a charge.
In the end, no perjury case has been made against Sessions. Should he have answered for broadly, yes. Should he have corrected the record earlier, yes. I have also felt that recusal was the clearly advisable course weeks ago and before this latest controversy. However, that does not make this a criminal matter. A recusal and clarifying letter will address the prior errors.
On a more tactical note, the White House should be concerned about another clumsy response to a controversy. Last night, the allegation was wrongly denounced as pure partisan attack. It was clearly more than that. Now, less than 24 hours later, an official recusal has been made and a letter of clarification will be issued. The White House needs to “up its game” dramatically. The White House continues to stumble through these controversies rather than take control. It sometimes seems that when the White House should be moving deliberately, it moves too fast — and when it should be proceeding with dispatch, it seems to move too slowly. There is clearly a period for any staff to reach its rhythm but this is bleeding the Administration from missteps that should have been avoided.