The problem is the answer: “Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.”
Let’s be as fair as possible to Sessions here. It is not easy to explain everything you mean in live testimony. It could be unclear what he meant by “the Russians,” and he might mean to be saying that he did not have communications about the campaign. Franken’s question was unclear and broad, and it was implicitly about other Trump officials, not Sessions. (That’s also what makes Sessions’s defensive shift to a personal denial so strange. Why jump to deny a charge that was clearly not even alleged?)
But in the end, his live testimony was false. He did “have communications with the Russians” during the campaign. So this is what normally happens in confirmation hearings: the nominee reviews his testimony with lawyers afterward to make sure he or she did not accidentally mislead or lie. The nominee has days to amend their testimony, to give written clarifications if anything was untrue or misleading. If he or she does, then the problem is resolved. There is no “gotcha” for the earlier false statement, because the nominees have ample opportunity on their own to clarify.
Not only did Sessions fail to correct his false or misleading answer, but he continued to mislead when given a direct opportunity to clarify or disclose one week later in a written answer to Sen. Leahy.
First, on Jan. 12 (two days after Franken’s question), the Washington Post broke a huge story about national security adviser-designate Michael Flynn’s interactions with Russia’s Ambassador Kislyak. On Jan. 15, Pence appears on “Face the Nation” to discuss Kislyak. At this point, every nominee has been reminded about Kislyak, that he was a really big deal, and that meeting him is a really big deal. If Sessions had somehow forgotten meeting Kislyak, he was undoubtedly reminded with a ton of bricks from the media storm around Flynn. At that point, any nominee would think, “Wait, did I meet with the same guy? And if I did, did I say anything under oath to the contrary?” It would be problematic enough to fail to clarify Sessions’s live answer. But the problem is worse.
On Jan. 17, five days after the Washington Post story, and a week after the false answer to Franken, Sen. Leahy, the ranking Democrat on the Judiciary Committee, sends Sessions a letter asking about Russia, among other things:
Several of the President-Elect’s nominees or senior advisers have Russian ties. 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?
Boom. There’s the case for perjury/ criminal false statement. Now let me be clear: by itself, the answer to Leahy appears to have wiggle room. But you cannot read the answer to Leahy by itself. It may be a second lie on its own, but more clearly, it is a failure to clarify the false statement in the live testimony, it continues to mislead, and it builds a strong case for intent to mislead and deceive. Keep in mind, there are reports that Sessions did discuss the 2016 election with Kislyak, so in fact, both statements under oath may be false. In the very least, Sessions should have clarified his answer to Franken on his own initiative, especially once the Flynn/Kislyak story exploded two days later. But Leahy gave Sessions a gift, a fairly direct opportunity to disclose, clarify and correct a false statement, but Sessions turned that opportunity into a strong case of a deliberate false statement.
Here’s one more authority about whether this behavior counts as perjury or a criminal false statement: Sessions himself. In 1999, Sessions concluded that Bill Clinton’s statements, despite some roughly similar kinds of word-parsing and wiggling, constituted perjury, and Sessions voted to convict on both perjury and obstruction of justice. What’s good for the goose, Sessions?