Someone please explain this statement to me: "Sessions' Senate testimony probably wasn't actual perjury." Sessions twice prepared to be asked about Russia meetings by Congress, got asked direct questions on that very topic, and lied. What do Lawfare editors think "willful" means?
2/ @Susan_Hennessey, the evidence of intent in the Sessions case is *overwhelming*. When forced to come clean about two meetings with Kislyak, he still withheld information about a third. We know he lied about his reaction to George Papadopoulos' big "reveal" on his Kremlin ties.
3/ We know Sessions made numerous factually incorrect statements to support his initial lies—such as that senators regularly meet with the Russian ambassador. A CNN survey showed that in 2016 not one member of the Senate Armed Services Committee met with Kislyak besides Sessions.
4/ We know that in describing interactions with Papadopoulos—which, as with Kislyak, he'd prepared himself to be questioned about—he left out sitting next to him for hours at a dinner. With Carter Page he did the same thing—eliding info on a conversation about Page's Moscow trip.
5/ We know he's made blanket statements about his knowledge of Russia-related conversations within the national security team he ran that are beyond implausible and almost certainly disproven by evidence Mueller has, such as that he got *no emails* on the subject of Russia, ever.
6/ We know he participated in the plot to fire Comey, which Trump has since conceded was about the Russia investigation. We know that, though, Sessions recused himself over the Russia question, he's since repeatedly violated his recusal. His course of conduct on Russia is clear.
7/ I think Lawfare is great. But I also think knowledge of the law needs to be married with knowledge of the Trump-Russia investigation, if you're going to write about legal matters falling within the Trump-Russia investigation. And sometimes that seems to be missing on Lawfare.
8/ If I've missed some thread on Lawfare, or by a Lawfare editor on Twitter, @Susan_Hennessey, establishing that the government has no case against Sessions on perjury, I'd love to see it. Because I've worked perjury cases, and I don't see anything like what you're seeing here.
9/ Reader Jeff writes, "@PreetBharara suggested the questions weren’t asked tightly, and senators allowed Sessions to answer different questions from those asked."
I disagree on Franken's question, but let's be clear in saying Sessions' response to Franken wasn't the only issue.
I disagree on Franken's question, but let's be clear in saying Sessions' response to Franken wasn't the only issue.
10/ First, Sessions *volunteered* false info outside the scope of any question asked of him. Second, Sessions gave false testimony in response to more questions than Franken's. Third, "I don't recall" is indeed a tough answer to hang perjury on, but Sessions said more than that.
11/ Fourth, prosecutors will look at a pattern of deceit with respect to what one recalls and does not. If you say you recall which meetings you had or didn't have during a given time-period, the answer "do not recall" when asked about a specific meeting becomes a legal problem.
12/ Fifth, understand that blogs like Lawfare offer a celebrity view of the law—what a rich white man would be charged with, or not, in a high-profile case with political implications and largely rich, influential actors. Whether perjury would be charged on these facts against...
13/ ...a defendant with no protections by virtue of name, rank, money, power or demographics is an entirely different question—and one that I fear blogs like Lawfare routinely obscure by never pulling back and asking how an *average American* would fare under these circumstances.
14/ Moreover, blogs like Lawfare, which intend well, nevertheless do poorly on the topic of intent—inadvertently teaching that intent only exists with confession or "earwitness" testimony. That's wrong—intent is almost always established by the context in which words are uttered.
15/ And does Lawfare realize prosecutors also ask juries to consider body language? Or—in a case like this—the clear duty an AG has to give careful answers? Or the expectations we're allowed to have of those who testify before Congress *regularly*? It would all come in at trial.
16/ Lawfare isn't giving readers a full picture of what a trial is, how it works, what sort of evidence is admissible and expected, how perjury cases work—say—in the courthouse down the street from you. Instead, we get pseudo-aphorisms like, "perjury is hard to prove." Yeah, so?
17/ Does anyone reading this think prosecutors are walking around their offices around the country tugging at their ties saying, "Gee whiz, I dunno, perjury is so hard to prove!" Is that why Americans are being charged and convicted of perjury every single day in American courts?
18/ In a court—rather than a Lawfare musing—a prosecutor would have a *chapter* of cross-examination on all the preparation that goes into Senate testimony, including all the staffers who assist, the topics prepared for, and so on. Sessions wasn't winging it, for Christ's sake(!)
19/ It takes a *tortured* reading of Franken's query, and Sessions' reply, and the info he volunteered to Franken, and his other answers, and his answers at his second hearing, and all the circumstantial evidence, to say the average prosecutor wouldn't bring perjury charges here.
20/ Remember, no legal analyst ever lost face by saying a case couldn't be made out when it could be, only the opposite. That's why legal analysts for high-profile cases (read: rich defendant) are always on the side of caution (read: rich defendant). It's systemic and insidious.
