The Perjury Allegation against Jeff Sessions Is Meritless
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.
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Senator Franken patently framed this line of inquiry in the context of Russian espionage against the Trump campaign, drawn from CNN’s report of a salacious, discredited, uncorroborated dossier. It claimed that the Russians had acquired compromising personal and financial information about Donald Trump. With that premise, Franken added the dossier’s claim that “there was a continuing exchange of information between Trump surrogates and intermediaries for the Russian government.” The point that Franken was clearly driving at was that Sessions, having supported Trump and been a Trump-campaign surrogate, should recuse himself as attorney general from any investigation probing communications between the Trump campaign and Russian officials.
In that context, Sessions volunteered that he was not aware of “those activities” — clearly meaning the activities outlined in the dossier. He then appeared to discount the claim that he was a Trump-campaign “surrogate.” To be sure, “surrogate” is not so much a formal position as a blurry description, often offered by persons other than the so-called surrogate, of someone who supports a candidate and speaks on the candidate’s behalf. In an incomplete thought (which one often gets in witness testimony), Sessions appeared to quibble with the notion that he was a formal “surrogate” as opposed to someone who was occasionally referred to as one. It seems apparent that he was distancing himself from Franken’s insinuation about Trump surrogates colluding with Russians. At that point, Sessions abruptly cut himself off and summarily said he “did not have communications with the Russians, and I’m unable to comment on it.”
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.
[clip]
Senator Franken patently framed this line of inquiry in the context of Russian espionage against the Trump campaign, drawn from CNN’s report of a salacious, discredited, uncorroborated dossier. It claimed that the Russians had acquired compromising personal and financial information about Donald Trump. With that premise, Franken added the dossier’s claim that “there was a continuing exchange of information between Trump surrogates and intermediaries for the Russian government.” The point that Franken was clearly driving at was that Sessions, having supported Trump and been a Trump-campaign surrogate, should recuse himself as attorney general from any investigation probing communications between the Trump campaign and Russian officials.
In that context, Sessions volunteered that he was not aware of “those activities” — clearly meaning the activities outlined in the dossier. He then appeared to discount the claim that he was a Trump-campaign “surrogate.” To be sure, “surrogate” is not so much a formal position as a blurry description, often offered by persons other than the so-called surrogate, of someone who supports a candidate and speaks on the candidate’s behalf. In an incomplete thought (which one often gets in witness testimony), Sessions appeared to quibble with the notion that he was a formal “surrogate” as opposed to someone who was occasionally referred to as one. It seems apparent that he was distancing himself from Franken’s insinuation about Trump surrogates colluding with Russians. At that point, Sessions abruptly cut himself off and summarily said he “did not have communications with the Russians, and I’m unable to comment on it.”
