On the overwrought, partisan allegations that Attorney General Jeff Sessions committed perjury in his confirmation-hearing testimony, let’s cut to the chase: There is a good deal of political hay to be made because Sessions made a statement that was inaccurate — or at least incomplete — especially when mined out of its context. But the claim that his testimony was perjurious as a matter of law is wholly without merit.
Perjury is not inaccuracy. It must be willfully false testimony. Willfulness is the criminal law’s most demanding mens rea (state of mind) requirement. Prosecutors must prove beyond a reasonable doubt that the speaker knowingly, voluntarily, and intentionally — not by accident, misunderstanding, or confusion — said something that was untrue, with a specific purpose to disobey or disregard the law. Therefore, when there is an allegation of perjury, the alleged false statements must be considered in context. Any ambiguity is construed in favor of innocence. If there is potential misunderstanding, the lack of clarity is deemed the fault of the questioner, not the accused.
We will turn momentarily to the transcript of the exchange between Sessions and Senator Al Franken (D., Minn.). First, let’s highlight the inaccuracy in the testimony. Sessions stated that he did not have “communications with the Russians.” It is now known that there were at least two occasions during the 2016 campaign on which Sessions, then a senator and a member of the chamber’s Armed Services Committee, had contact with Sergey Kislyak, the Russian ambassador to the United States.
One of these occasions is easily dismissed: Apparently, Sessions saw Kislyak, in addition to dozens of other ambassadors, at a Heritage Foundation reception during the Republican convention. As Sessions was leaving the podium, a smaller group of these diplomats, including Kislyak, approached Sessions to chat briefly — mainly to compliment him on his remarks. Even the Washington Post doesn’t think much of this chance meeting (buried deep in its story) other than the fact that it happened.
A second meeting occurred in September in Sessions’s Senate office. The Post dramatically claims that this meeting occurred “at the height of what U.S. intelligence officials say was a Russian cyber campaign to upend the U.S. presidential race.” That is a curious description. The report by intelligence officials claimed that the Russian cyber effort targeted both major parties, not just Democrats. Moreover, the successful hacking of Democratic e-mail accounts had already occurred by September. There is not a shred of evidence that anyone in the Trump campaign was in any way complicit in the hacking, much less that the hacking affected the outcome of the election. To the unknowable but probably inconsequential extent that the Trump campaign may have benefited from disclosure of John Podesta’s e-mails, there is nothing criminal about that — no more than there is anything criminal in the fact that the much of the American media skew their coverage in favor of Democrats.