Following James Comey’s hearing on Capitol Hill, the Department of Justice issued a statement which flatly contradicts something that Comey said in his testimony. It appears that Comey and Jeff Sessions have directly opposing positions on how the Attorney General responded when Comey says he implored Sessions to prevent the president from directly communicating with him as FBI director. It is increasingly common these days for the administration to include a falsehood in an official statement. Repeating that falsehood under oath before Congress is an entirely different matter. It’s a federal crime. And these proceedings have a special counsel looking over them.

What to watch for next: On Tuesday, Attorney General Jeff Sessions will appear before the Senate Intelligence Committee. If he repeats a claim that is contained in the Department of Justice’s “Statement on Testimony of Former FBI Director James Comey,” it is very likely that Sessions will commit perjury or a felony false statement or misrepresentation (which does not require being under oath).

Whether in open or closed session, all it may take is a lawmaker essentially asking the Attorney General whether he stands by the statement released by the Justice Department with respect to a significant interaction between Comey and Sessions. (I’d also recommend he be asked how sure he is of his own recollection.) The question revolves around what Comey told Sessions on the need to prevent direct communications from the President and how Sessions responded.

The Valentine’s Day meeting

On February 14, following an intelligence briefing in the Oval Office, the President asked everyone in the room, including the Attorney General, to leave so that the he could meet alone with Comey. It was then that Trump spoke to Comey about Michael Flynn. None of those facts are in dispute.

What Comey told Sessions

On the following day, February 15, Comey says that he implored Sessions to prevent the President from ever again having bilateral communications with the FBI director. In his written prepared testimony, Comey states:

“I took the opportunity to implore the Attorney General to prevent any future direct communication between the President and me. I told the AG that what had just happened – him being asked to leave while the FBI Director, who reports to the AG, remained behind – was inappropriate and should never happen.”

The Justice Department’s Statement describes what Comey told Sessions very differently. The Justice Department’s statement reads:

“Mr. Comey said, following a morning threat briefing, that he wanted to ensure he and his FBI staff were following proper communications protocol with the White House.”

The Justice Department leaves out any reference to Comey’s stating that what the president had done was wrong and should never occur again. It also seems fair to read the Justice Department’s statement as saying that Comey was simply asking what he and his staff should do internally—as though the burden rested on them—and not asking the Attorney General to act to prevent a recurrence of such communications or to run interference with the President.

Sessions’ response

How the Attorney General responded to Comey presents an even sharper issue for perjury. This does not come down to a different spin, nor a fact included in one account that is omitted in another. It comes down to a complete contradiction, in which one side’s statement clearly must be true and the other’s must be false.

In his prepared testimony, Comey stated that the Attorney General did not respond. Specifically, Comey wrote:

“He did not reply.”

During the hearing, in response to Senator Harris Comey said again:

“He didn’t say anything.”

Instead Comey discussed the Attorney General’s “body language.”

In its written statement, the Justice Department says:

“The Attorney General was not silent; he responded to this comment by saying that the FBI and Department of Justice needed to be careful about following appropriate policies regarding contacts with the White House.”

Assessment

The elements of perjury include: (1) making a materially false statement; (2) willfully; (3) in a federal proceeding; (4) under oath. It is difficult to prosecute someone for perjury because doing so requires proving the individual acted willfully, or believing their own statement was untrue. Similarly, felony false statements require the individual “knowingly and willfully” made the false statement. As an aside, it bears noting that the impeachment clause is not only for the commission of crimes (it can be broader than the elements of any federal offense), it does not involve criminal standards of proof, and it is not a remedy only for presidents’ wrongdoing (an attorney general can be impeached too).

But focusing on the context of a criminal proceeding, there are several factors that indicate the Justice Department is being untruthful—and that Sessions would run a high risk of perjury if he affirms the Department’s statement.

1. Sessions has a motivation to make a false statement—to cover up his failure to respond appropriately and protect the FBI director and the bureau; he may also want to protect the President;

2. Comey had a motivation to be extremely truthful; any significant holes in his statement would undermine his entire testimony which was a defining moment for his professional and personal life and for the grave significance of the record of his interactions with the President;

3. Sessions has established a record that raises questions about his credibility—which as an evidentiary matter will work much to his detriment in any he said-he said situation like this one; his false statements to Congress about his meetings with a Russian official will be relevant here;

4. Comey has established a somewhat sterling record of credibility; Republican and Democratic Senators lauded his hours-long testimony along this dimension, and he was evidently committed to the truth in even admitting to the way in which he conveyed his memos to the press;

5. The Justice Department’s Statement has other indicia that it lacks truthfulness. The Justice Department’s spin on what Comey said to Sessions is hard to imagine since the President’s actions in removing everyone from the Oval Office to meet with Comey alone violated important protocols and Comey was obviously very upset by it in bringing it to the attention of the Attorney General; indeed, the Justice Department’s very description of the conversation—both sides of it—is hard to believe given the extraordinary event Sessions himself witnessed just the day before.

What’s more, there may be ways to gather additional evidence to help establish a case of perjury. Notably, we should not lose sight of the fact that in some cases of perjury there may not be another witness willing to come forward, and the proof would be based on other evidence. In this case, Sessions may make a statement that the former director of the FBI is willing to testify is false. Additional evidence may exist to determine whether Sessions or Comey has the more accurate account.

1. It is quite likely that Comey reported contemporaneously to senior FBI officials his decision to report their concerns to Sessions and that Comey reported back on the Attorney General’s response to raising the concern; recall that prior to meeting with Sessions, Comey met with the FBI leadership and mapped out the proper course of action following the Oval Office interaction with the President including on matters concerning how to interact with the Attorney General;

2. There may have been witnesses to the February 15 conversation, at least to the point of whether they could tell whether the Attorney General said anything in response to Comey. The New York Times’ Michael S. Schmidt and Matt Apuzzo broke the story of the encounter between the two men. Their report does say that Comey “pulled him aside after a meeting,” and it relies on “current and former law enforcement officials.” While you might think pulling someone aside suggests their conversation became private, it is notable that you generally pull a person aside if you are in a space with others nearby. Were one of those “current and former law enforcement officials” in the room at the time? Sessions may need to hope not.

One last note on the elements of perjury and federal false statements: for both, the false statement must be “material” to the proceedings. That is, the statement must be capable of influencing, the decision of the decision-making body at hand. Here, the February 15 conversation is corroboration for the obstruction of justice issue—how Comey responded to the President’s actions, whether Comey reported it, why direct communications with the President recurred. What is more, Sessions’ own actions are important to the congressional investigations especially if he acted with willful disregard in response to the acts of the President and because he himself is potentially implicated in the obstruction of justice.

* * *

If Comey’s testimony was accurate, Sessions’ choices may now be limited: (1) commit perjury or make a false statement or false representation; (2) walk away from his department’s official response to the Comey testimony (with all the implications for his credibility that would entail); or (3) somehow avoid answering questions on this issue. The third option is complicated by the fact that the Department has demonstrated a willingness to speak on the matter, and it surely acquired the information from Sessions.

So, on Tuesday, it boils down to whether a lawmaker simply asks something like, “Mr. Sessions — under oath and at risk of committing perjury – do you stand by the Statement of the Justice Department concerning your interactions with Mr. Comey on February 15?”

[Editor’s note: You may also want to read Ryan Goodman’s subsequent piece, “Five (Not-So-Obvious) Questions that Att’y General Jeff Sessions Should be Asked”]

Image: Then-Senator Jeff Sessions is sworn in before the Senate Judiciary Committee during his confirmation hearing to be the U.S. attorney general January 10, 2017 – Chip Somodevilla/Getty