On Friday, the Washington Post reported that U.S. intelligence activities intercepted communications between Russian Ambassador Sergey Kislyak and Moscow in which Kislyak recounts conversations with then-Senator Jeff Sessions during 2016 about matters relating to the Trump campaign. Beyond adding yet more weight and momentum to the snowballing Trump-Russia scandal, the story has renewed discussion of the issue of whether Sessions may have committed perjury when he testified to the Senate during his confirmation hearing to be Attorney General that he “did not have communications with the Russians.”

We should begin by noting that what we currently have is an unconfirmed report about an intelligence intercept. Therefore, even if the Post report is true, what we know is what the Russian ambassador said were the contents of his conversation(s) with Sessions. Some caution is prudent before presuming the truth of Kislyak’s specific assertions, even assuming the Post’s reporting is accurate. Furthermore, this is not the sort of evidence which would ever be introduced in court; even if the relevant intelligence agency authorized its use, Kislyak’s statement is hearsay. So, bold claims from members of Congress notwithstanding, the odds of Sessions facing perjury charges based on the public record to date remain, as a practical matter, at essentially zero.

Still, this latest revelation is part of a larger pattern of Trump team assertions regarding their contacts with Russia and Russian officials that are later called into question or outright proven to be untrue. Because speculation regarding possible perjury is running rampant, it is worth unpacking the legal analysis a bit.

Back in March, it surfaced that Sessions had met with Kislyak during the campaign. This was at odds with a number of sworn statements Sessions made to Congress in the process of his confirmation. For example, Senator Patrick Leahy of Vermont asked Sessions “Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?” Sessions’s written response was “No.”

The revelations regarding the Kislyak claim led many to cry perjury. At the time, Helen explained the basics of perjury and why it is so difficult to prove:

Perjury, criminalized at 18 U.S.C. § 1621, is perhaps the most recognizable law against lying. The statute makes it a crime to “willfully and contrary to [an] oath state[] or subscribe[] any material matter which he does not believe to be true.” It likewise criminalizes doing so in a written statement made under penalty of perjury, and it applies to statements made in federal court or other proceedings under oath, including congressional hearings. Perjury is extremely difficult to prove. A prosecutor has to show not only that there was a material misstatement of fact, but also that it was done so willfully—that the person knew it was false when they said it. In Bronston v. United States, a unanimous Supreme Court held that a literally true but unresponsive answer could not form the basis of a perjury conviction even if the individual intended to mislead. In that case, a bankruptcy proceeding, the testimony went as follows: Q: Do you have any bank accounts in Swiss banks, Mr. Bronston? A: No, sir. Q: Have you ever? A. The company had an account there for about six months, in Zurich. The questioning clearly implied personal bank accounts, but Mr. Bronston answered in regards to his company, implying that he personally never had Swiss bank accounts. It turns out Bronston had a personal bank account with a Swiss bank for a span of about five years. The government prosecuted him for perjury; a jury convicted, finding that his responses were intentionally misleading. The Supreme Court overturned the conviction and explained the extremely stringent standards for perjury. Although the Court agreed that there was an implication in the second answer that Bronston never had personal bank accounts in Swiss banks, implied material falsity was insufficient. The Court wrote that while “in casual conversation this interpretation might reasonably be drawn,” perjury does “not deal[] with casual conversation and the statute does not make it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true.” The Court made clear that the burden is on the questioner: “Under the pressures and tension of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it . . . . It is the responsibility of the [questioner] to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry.” Further, it didn’t matter that the jury in Bronston found as a matter of fact that the witness’s response was intentionally misleading because a “jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner.”

Indeed, Sessions’s immediate defense in response to the story about his meeting with Kislyak and perjury accusations squarely fit the Bronston limitation. In a letter amending his testimony, Sessions wrote, “My answer was correct. . . . I answered the question, which asked about a ‘continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government,’ honestly. I did not mention communications I had had with the Russian Ambassador over the years because the question did not ask about them.” Sessions’s explanation was that although his response may have been misunderstood (or, less charitably, may have been misleading), he was answering truthfully based on how he understood the question—not that he forgot those conversations, but that he did not think that his statement was materially untrue. Based on Bronston, that seemed at the time like a strong defense. As Helen wrote:

So when Al Franken asked Jeff Sessions “what he [would] do” if “there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign,” and Jeff Sessions responded “I have been called a surrogate at a time or two in that campaign and I didn’t have—did not have communications with the Russians,” that’s very likely not perjury under the Bronston standard. Sessions later said he understood the question to be about campaign-related contacts and claims he didn’t have specifically campaign-related contacts. Without more, his answer was at worst misleading. Franken’s questioning and Sessions’s answer simply were not sufficiently unambiguous. What might seem like a falsehood or intentionally misleading “in casual conversation” doesn’t rise to perjury.

If the central claim in Friday’s Post story—that Ambassador Kislyak reported to Moscow that he discussed the campaign with Sessions—is not just true, but also an accurate memorialization of the Kislyak/Sessions exchanges, that could fundamentally change that analysis, because then there would be a rather strong argument that Sessions’s initial answer to Franken and his follow-up written clarifications constitute textbook violations of § 1621.

At the time of this post’s publication, neither Sessions nor the Department of Justice have publicly commented on the story. So for now: Big, if true.

Revisiting the Speech and Debate Clause

Whatever Sessions and/or DOJ have to say on the matter in the coming days, analysis of whether Sessions committed perjury will inevitably continue to unfold. Some may argue in Sessions’s defense that, because he was a Senator at the time of his testimony, he is protected by the Constitution’s Speech and Debate Clause. But the Supreme Court has taken a functional approach to the clause that undercuts that undercuts the argument. As Helen explained in March:

The Constitution protects congresspersons from questioning and prosecution “for any Speech or Debate in either House.” Effectively, this immunizes lying by congresspersons—but only in their legislative capacity. The notion that a senator is immunized by the Clause when testifying as a presidential nominee doesn’t accord with the function of the Speech and Debate Clause, is undercut by Supreme Court precedent, and would lead to anomalous results. In Hutchinson v. Proxmire, a defamation suit against a senator for statements distributed in the senator’s newsletter, the Supreme Court held that the senator was not protected by the Speech and Debate Clause. The Court wrote that the objective of the Clause is “protecting only legislative activities,” and that “[c]laims under the Clause going beyond what is needed to protect legislative independence are to be closely scrutinized.” Sessions at his confirmation hearing was speaking as a nominee, not as a senator. The Clause was not meant to provide an absolute immunity to congresspersons, and the Supreme Court has not treated it as such. Its protection is functional: it depends on whether the speaker was acting in a legislative capacity, broadly construed. And the anomalous result that Senator Sessions would be protected, while Betsy DeVos wouldn’t, confirms the functional approach.

To be sure, there are plenty of critics of the Supreme Court’s analysis in Proxmire. But even if Proxmire goes further than might be necessary to protect the spirit of the Speech and Debate Clause, we are hard-pressed to see the argument that a nominee for a Cabinet position might be entitled to different immunities during his hearing based upon whether he is or is not currently a member of Congress. That is to say, even if the Supreme Court today would not follow Proxmire to the letter, we still think Sessions’s case would fall on the no-immunity side of the line. Unlike the meaning of Senate Rule XIX (which was invoked against Senator Warren for criticism of then-Senator Sessions during the confirmation process), the meaning and scope of the Speech and Debate Clause (and of the role Sessions was playing at the time of his relevant statements) is not up to the Senate, but rather, should we ever get there, the courts.

Of course, a perjury prosecution requires a prosecutor, and it stands to reason that any allegations against Sessions would be folded into the Special Counsel’s investigation. To that end, Friday morning’s Washington Post story about the White House pursuing avenues for terminating that investigation and/or firing Special Counsel Mueller could take on even more personal significance for the Attorney General—and, perhaps, for any potential successor.