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Monday, March 6, 2017

Some of the nation's top legal minds are off target on Jeff Sessions analysis, but if clarity and competence prevail, Trump's attorney general is going down


George Washington law professor Jonathan Turley
(From youtube.com)
Some of the nation's most prominent legal experts have offered analysis on the Jeff Sessions Russia scandal that is off target, premature, or both. Their task probably is made difficult by the fact Sessions is in deep doo-doo because he answered a question he was not asked in his confirmation hearings.

I already have stated that I don't think the Trump attorney general, who got away with all kinds of sleaze while serving as Alabama's attorney general and junior U.S. senator, can survive his current pickle -- and I doubt he will make it through the coming week. Sessions might survive longer than I think, if for no other reason than Republicans control Congress, and they've indicated they intend to protect him.

The only likely avenues for Sessions to survive are prosecutorial incompetence and investigative limp-wristedness -- both of which are distinct possibilities. It's early in the process, but here are some key questions we can answer now:

* Did Sessions lie to Congress? Yes, that can't be seriously disputed.

* Is that a crime? Yes, and it can be either a felony or a misdemeanor. At a bare minimum, Sessions should be in serious trouble for lying to, or misleading, Congress.

* Did Sessions commit perjury? It's too early to answer this one. A willful state of mind is a key component of this crime, so a serious investigation almost certainly is required before making a determination on criminal charges. (My guess? Yes, Sessions committed perjury.)

* Will Sessions stay in his job? If a FISA judge OK'd wiretapping on Trump Tower, it likely captured damning evidence against any number of Trump officials, including Sessions. Even a standard investigation -- unearthing e-mails, texts, notes, memoranda, testimony of aides -- is likely to provide troubling facts about Sessions' communications with Russian ambassador Sergey Kislyak. If any investigation is led by committed, clear-eyed professionals, it's hard to see how Sessions survives.

How has this story tripped up some of our top legal analysts. Consider George Washington University law professor Jonathan Turley, a regular on various cable-news shows and a master at handling complex legal questions with succinct, understandable answers. Turley has written that, based on what we know now, Sessions was correct to recuse himself from the Russia case, but he probably did not commit perjury.

Turley reached this conclusion primarily by analyzing the question U.S. Sen. Al Franken (D-MN) asked Sessions. The problem is that Franken did not ask the question Sessions answered, as made clear in this article at the Washington Examiner. From the article, by Phillip Klein;

Now that we know Sessions did speak to the Russian ambassador in 2016, the disagreement has mostly focused on whether or not Sessions' denial of contact with Russian officials was a clear lie, a truthful assertion that he did not have contact in his capacity as a representative of the Trump campaign, or something in between meant to obfuscate the truth. But there's a weird aspect to all of this that's being neglected: Sessions did not have to volunteer that he didn't have contact with the Russians, because Franken never asked him about it.

In the relevant part of the exchange, which was posted by my colleague Pete Kasperowicz, Franken mentions a CNN story about ongoing contacts between Russia and the Trump campaign. Franken then asks Sessions: "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?

So Franken was actually asking Sessions, were he confirmed as attorney general, how he would handle evidence about any communications. Sessions could have dismissed the question, saying he doesn't want to respond to hypotheticals. Or, he could have given a generic answer, such as saying that as the nation's top law enforcement officer, he would always want to make sure that the law was followed and that evidence of wrongdoing was properly evaluated.

But he did neither of those things. Instead, he responded to a question that Franken never asked, about whether he had contact with Russians. "Sen. Franken, I'm not aware of any of those activities," Sessions said. "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."

Since Franken did not ask the question that Sessions answered, it seems the "question" should be put on the side burner, for now. In essence, Sessions did not answer a question; he made a simple declarative statement -- "I did not have communications with the Russians" -- and we know that is false.

Under those circumstances, it's hard to see how Sessions avoids some sort of criminal charge here. Turley provides insight on some of the less-than-perjury charges the AG could face:

Of course, there are other charges like misleading Congress and “misleading” is defined broadly under federal law. . . .

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 thought the question was open ended but rather confirmed to a certain period.

As for perjury, legal analyst and author Jeffrey Toobin makes clear it is too early to reach a conclusion. Writing at The New Yorker, Toobin says the Sessions matter requires a thorough and careful investigation:

Partisans on both sides have been quick to convict or exonerate Sessions of any wrongdoing, but no final judgment is appropriate at this time. What’s needed is a full investigation—and here’s a guide to how such an inquiry might proceed.

In public statements after the Post’s disclosure, Sessions and his supporters offered various defenses of his conduct. They said Sessions didn’t remember his meetings with the Russian Ambassador; they said Sessions was meeting with Kislyak in Sessions’s role as a senator on the Armed Services Committee, rather than as a Trump campaign surrogate, which, they argued, made his response to Franken technically accurate, given the question he’d been asked; they said, furthermore, that the conversation between Sessions and Kislyak involved diplomatic, not campaign, matters, an additional indication that Sessions’s statement to the committee was accurate in context. These defenses may have merit. All the criminal laws involving false statements to Congress are so-called specific-intent crimes; in order to be found guilty, the defendant must intend to deceive. A faulty memory is a good defense. Likewise, establishing that a statement is literally true, even if misleading, is also a valid defense.

But all of Sessions’s possible defenses, as well as the details of a possible case against him, rest on facts—facts that are not yet known. This is what an investigation should disclose. For example, was anyone else present during the meetings between Sessions and Kislyak? If so, that person might confirm whether campaign matters were discussed, and if so, how much of a focus of the conversation they were. A third party could also help determine how long the meetings were; it’s easier to forget a meeting that lasts ten minutes than one that goes on for an hour. Likewise, how often did Sessions meet with Kislyak, or with any ambassador? There is nothing inappropriate about a senator meeting with an ambassador, but if Sessions had such encounters only rarely, it would be harder to credit his explanation that he simply forgot this one.

What is central to such an investigation? Toobin spells it out:

As in most investigations, the key evidence is likely to be documents, rather than testimony, because contemporaneous records are often more reliable than memories. Did Sessions or an aide take notes about the Kislyak meeting? Are there e-mails setting it up? (If a Sessions office e-mail said, “The Ambassador wants to talk about arms control,” that would be significant and exculpatory; if an e-mail said, “The Ambassador wants to talk about the campaign,” that would be relevant in a different way.) Did Sessions himself get e-mails or memos from his staff about the Kislyak meetings in advance or as follow-ups? Those would provide useful clues about what was said between the two men.

This goes to one of the legal lessons we have learned here at Legal Schnauzer -- a guilty, corrupt, or liable party almost always is desperate to avoid discovery, whether the case is criminal or civil.

If documents like the ones Toobin describes make their way to public eyes, it likely will spell bad news for Jeff Sessions.

11 comments:

Anonymous said...

Hard to see how Sessions will survive this.

Anonymous said...

Key point: Sessions did not answer a question from Franken. As you state, Sessions made a simple, straight-up statement, and it was false. I think Turley, and a few others, are making this more complicated than it really is.

Anonymous said...

The kind of investigation Toobin is talking about -- with documents, records, etc. -- will cook Sessions' goose. But who has the stones to do it?

Anonymous said...

Sessions had more than a month to correct the record, but he made no attempt to clarify until the Washington Post outed him. That's why this smells so bad.

Anonymous said...

Mark it down -- Sessions gets off.

Anonymous said...

My understanding is that lawyers are taught to make sure their clients answer only questions put to them, and nothing more. Sessions doesn't know that?

Anonymous said...

I think Sessions was coached to lie about anything regarding Russians. Toobin seems to suspect the same thing.

legalschnauzer said...

I agree, @11:47. I think that's why he answered a question that wasn't put to him. That points to the possibility that someone aided and abetted his perjury.

Anonymous said...

Pretty sad that an AG candidate has to be coached on giving testimony under oath.

legalschnauzer said...

Good point, @2:57. Thats's like coaching Michael Phelps on how to dog paddle.

Anonymous said...

Fantasy. Sessions will be the AG as long as he wants to be.