Ses­sions shouldn’t get a free pass

The Washington Post Sunday - - SUNDAY OPINION - BY PHILIP LACOVARA AND LAWRENCE ROB­BINS

At­tor­ney Gen­eral Jeff Ses­sions made a seem­ingly false state­ment un­der oath dur­ing his con­fir­ma­tion hear­ing. Ad­mit­tedly, not ev­ery po­ten­tial per­jury case gets pros­e­cuted, and Ses­sions may well have de­fenses to such a charge. But as lawyers at the Jus­tice Depart­ment and at­tor­neys in pri­vate prac­tice who have rep­re­sented in­di­vid­u­als ac­cused in such cases, we can state with as­sur­ance: Fed­eral pros­e­cu­tors have brought charges in cases in­volv­ing far more triv­ial mis­state­ments and sit­u­a­tions far less con­se­quen­tial than whether a nom­i­nee to be the na­tion’s chief law en­force­ment of­fi­cer mis­led fel­low sen­a­tors dur­ing his con­fir­ma­tion hear­ings.

Ses­sions’s prob­lem­atic state­ment in­volves his re­sponse to a ques­tion by Sen. Al Franken (D-Minn.) about what he would do as at­tor­ney gen­eral “if there is any ev­i­dence that any­one af­fil­i­ated with the Trump cam­paign com­mu­ni­cated with the Rus­sian gov­ern­ment in the course of this cam­paign.” Ses­sions said he was un­aware of any such ac­tiv­i­ties, then vol­un­teered, “I did not have com­mu­ni­ca­tions with the Rus­sians, and I’m un­able to com­ment on it.” In fact, thenSen. Ses­sions (R-Ala.), a top Trump cam­paign ad­viser, met at least twice dur­ing the pres­i­den­tial cam­paign with Rus­sian Am­bas­sador Sergey Kislyak, The Post re­vealed.

As any num­ber of wit­nesses have learned the hard way, it is a fed­eral felony to lie to Congress. Un­der Ti­tle 18 of the U.S. Code, Sec­tions 1001 and 1621, per­jury be­fore Congress is pun­ish­able by up to five years im­pris­on­ment. To prove that of­fense, a pros­e­cu­tor would have to es­tab­lish that Ses­sions’s an­swer was false, that he knew it was false when made and that the sub­ject mat­ter of the an­swer was “ma­te­rial” to the con­gres­sional in­quiry in which he was tes­ti­fy­ing.

Those el­e­ments all ap­pear to be present. The el­e­ment of fal­sity is es­tab­lished by the con­ceded fact that he did “have com­mu­ni­ca­tions with the Rus­sians” dur­ing the Trump cam­paign. And there can scarcely be any doubt that the sub­ject mat­ter of Ses­sions’s an­swer was highly ma­te­rial to the Se­nate’s con­sid­er­a­tion of his nom­i­na­tion. Any sug­ges­tion that he par­tic­i­pated in the sus­pected in­ter­ac­tion be­tween Trump cam­paign per­son­nel and the Rus­sian gov­ern­ment was, and re­mains, a mat­ter of grave con­cern.

That leaves one el­e­ment: Did Ses­sions know that his an­swer was false? He says no, as­sert­ing that he un­der­stood Franken to be ask­ing only whether he had con­tact with the Rus­sian gov­ern­ment in his ca­pac­ity as a Trump cam­paign sur­ro­gate. While a jury might ac­cept that de­fense, there are many rea­sons to re­ject it: Ses­sions’s an­swer baldly de­nied any con­tact. More­over, Ses­sions went out of his way to deny con­tact in re­sponse to a ques­tion that did not in­quire about that sub­ject. By do­ing so, he pre­empted an im­por­tant line of in­quiry that might oth­er­wise have been fruit­fully pur­sued.

Cer­tainly there is prece­dent for a pros­e­cu­tion in this con­text. Part of the fall­out from Water­gate in­cluded the spe­cial pros­e­cu­tor’s in­ves­ti­ga­tion of Richard Klein­di­enst, who had re­signed from his po­si­tion as at­tor­ney gen­eral, for al­leged false state­ments dur­ing his con­fir­ma­tion hear­ing be­fore the Se­nate Ju­di­ciary Com­mit­tee. Klein­di­enst was asked whether the White House had in­ter­fered with a Jus­tice Depart­ment an­titrust ac­tion against the In­ter­na­tional Tele­phone and Tele­graph Cor­po­ra­tion. He stated, “I was not in­ter­fered with by any­body at the White House” — but Pres­i­dent Nixon and one of his top aides had each called Klein­di­enst re­gard­ing the case. Klein­di­enst pleaded guilty to a mis­de­meanor charge for “re­fus[ing] and fail[ing] to an­swer ac­cu­rately and fully” ques­tions at a con­gres­sional hear­ing.

Those facts left no room for any col­orable de­fense on the “knowl­edge” is­sue. But when Jus­tice Depart­ment of­fi­cials de­cide whether to bring a case against Ses­sions — or, more ap­pro­pri­ately, when an in­de­pen­dent coun­sel is ap­pointed and re­solves that ques­tion — this must be done against the back­drop of other per­jury cases that the depart­ment has cho­sen over the years to bring. And the depart­ment has pros­e­cuted in­di­vid­u­als who ad­vanced de­fenses very sim­i­lar to Ses­sions’s ar­gu­ments here, of­ten where there was far less at stake.

Years ago, for ex­am­ple, one of us (Rob­bins) rep­re­sented a de­fen­dant named John Pa­trick Dowd, ac­cused of ly­ing to a grand jury. Dowd was pres­i­dent of a com­pany that had leased a ves­sel that had dumped 13,500 tons of Philadel­phia in­cin­er­a­tor ash into the sea. There was no ev­i­dence that Dowd was per­son­ally in­volved in the dump­ing, but his grand jury tes­ti­mony led to a per­jury in­dict­ment. Dowd was ac­quit­ted of ly­ing to the grand jury when he tes­ti­fied that he didn’t know where the ash went. Yet he was con­victed for his neg­a­tive re­sponse to the ques­tion: “You had no idea?” Thus, even a ques­tion and an­swer far vaguer and more am­bigu­ous than the Franken-Ses­sions ex­change were deemed suf­fi­cient to jus­tify pros­e­cu­tion.

Or take the clas­sic case of vague ques­tion­ing: Bron­ston v. United States. Sa­muel Bron­ston had placed his movie pro­duc­tion com­pany into bank­ruptcy and was be­ing ques­tioned about his and the com­pany’s fi­nances. He was asked about, and de­nied, hav­ing any ac­counts in Swiss banks. Then the ob­vi­ous fol­lowup — “Have you ever?” — to which Bron­ston replied: “The com­pany had an ac­count there for about six months.” What Bron­ston ne­glected to men­tion was that he had a large per­sonal Swiss bank ac­count that he closed when he filed to place his com­pany in bank­ruptcy.

The Supreme Court held that although his re­sponses may have been de­cep­tive and in­tended to mis­lead, they did not con­sti­tute per­jury be­cause they were lit­er­ally true, and it was the fault of the ques­tioner that he failed to pur­sue the in­quiry fur­ther. The Ses­sions’s sit­u­a­tion presents ex­actly the op­po­site sce­nario: Ses­sions’s re­sponse ap­pears to be both lit­er­ally false and com­pre­hen­sive, leav­ing noth­ing open for fur­ther in­quiry re­gard­ing the na­ture of his con­tacts with the Rus­sian gov­ern­ment dur­ing the pres­i­den­tial cam­paign.

A gov­ern­ment that has been will­ing to pros­e­cute rel­a­tively small and ques­tion­able in­stances of fal­sity in con­nec­tion with mat­ters of com­par­a­tively mi­nor im­por­tance should have dif­fi­culty ex­plain­ing why Ses­sions’s tes­ti­mony would re­ceive a free pass. Philip Lacovara was coun­sel to Water­gate spe­cial pros­e­cu­tors Archibald Cox and Leon Ja­worski, and also served as deputy U.S. so­lic­i­tor gen­eral re­spon­si­ble for crim­i­nal mat­ters, in­clud­ing the Bron­ston case. Lawrence Rob­bins has been both an as­sis­tant U.S. at­tor­ney and as­sis­tant to the so­lic­i­tor gen­eral. Lacovara is a life­long Repub­li­can; Rob­bins con­trib­uted to and raised money for Hil­lary Clin­ton’s pres­i­den­tial cam­paign. The views ex­pressed are their own.

ALEX BRAN­DON/AS­SO­CI­ATED PRESS

Then-Sen. Jeff Ses­sions (R-Ala.) tes­ti­fies at his con­fir­ma­tion hear­ing be­fore the Se­nate Ju­di­ciary Com­mit­tee in Jan­uary.

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