While most Democratic senators have been somewhat circumspect in characterizing the testimony of Attorney General Jeff Sessions as “inaccurate” or “misleading,” Minnesota Sen. Al Franken yesterday publicly accused Franken of perjury. It is a weighty charge that I have previously said would be highly difficult to actually prosecute.
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 transcripted exchange:
Franken: “CNN just published a story alleging that the intelligence community provided documents to the president-elect last week that included information that quote, ‘Russian operatives claimed to have compromising personal and financial information about Mr. Trump.’ These documents also allegedly say quote, ‘There was a continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government.’
“Now, again, I’m telling you this as it’s coming out, so you know. But if it’s true, it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?”
Sessions: “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 didn’t have — did not have communications with the Russians, and I’m unable to comment on it.”
Even Franken admits that Sessions went beyond the question, which did not specifically ask about his ties. He did answer the question with the inevitable response for anyone assuming such an office: he cannot comment on what he would do if presented with evidence of collusion. He went beyond the question to answer what he said later was a response to the reference to campaign discussions with Russians.
As I stated earlier, he should have recused himself earlier than he did. He also should have sent in a letter of clarification right after the hearing. Better yet, if he wanted to discuss his own interactions with the Russians, he should have mentioned with brief meetings in the context of the answer. However, none of that makes for a perjury case. The two meetings with the Russians were disclosed by the Justice Department and Sessions did ultimately send a later that (1) again confirmed the meetings to correct the record and (2) to offer his explanation.
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.
I fail to see the evidence of intent in answering a rather rambling question followed by a correction.
Franken insisted that Sessions’ explanation was “a ridiculous response. It’s not a clarification at all.”
It is a curious position to take given the earlier controversies of Obama officials accused of giving misleading testimony without such calls for perjury charges from the Democratic members. For example, Sen Franken did not call for a perjury charge against former Director of National Intelligence James Clapper. As we discussed earlier, when Clapper appeared before the Senate, he was asked directly, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded, “No, sir. … Not wittingly.”
We now know that was not true. Later, Clapper admitted to giving a false answer to Congress but explained that his testimony was “the least untruthful” statement he could make. Yet, of course, that would still make it an untrue statement — which most people call a lie and lawyers call perjury. Yet, neither Franken nor his colleagues accused Clapper of perjury and called for his indictment. That was a direct question about the most massive surveillance program in the history of this country. He gave a direct answer that was untrue and later offered exceptionally weak explanations.
Again, I understand the objections to the Sessions’ testimony and I share the view that this controversy was not handled properly. However, there is still a line between what is negligent and what is criminal. This is an instance of the former rather than the latter.