Coincidence is not causation. Every lawyer understands this. It is the first day of law school. The rooster crows, the sun rises, but that does not mean that the rooster made the sun rise. This kind of insipid simplicity is wasted on everyone with an understanding of the world works, but apparently not on Democrats. That Sessions talked to the Russian Ambassador as a senator, at the same time he was helping Trump, is not evidence of anything unlawful. It’s the rooster-sunrise kind of logic that reporters and Democrats love, and that the simple minded go “gee, that sounds bad.” But it isn’t.
How you answer a question depends on the call of the question. In a deposition a lawyer might ask a nurse something like “the medical records show the patient had a blood pressure of 60 by palpation, and was sweating. Who administered the morphine?” This is not a fair question because (1) the witness likely doesn’t have the medical record in front of him, and (2) he’s being asked to comment on its truthfulness by answering the question, the answer of which is assumed in the question. This question is sure to draw an objection in court, but of course, at a confirmation hearing a person has to be their own lawyer.
I routinely tell my clients that in a deposition, where they are under oath, and sworn to tell the truth, that they answer only the question asked, not what they think the questioner meant. Here’s how that works:
Lawyer: How did you get here today.
Client: I drove my Buick from my house and parked in the lot across from the street.
At this point I tell the client that the perfect answer was the first two words: “I drove.” If the person doing the questioning wants to know what kind of car, what route you took, or where you parked, those are separate questions.
We tell people this because when a person answers a question with more than what is required, it is deemed responsive to the question, and it always leads to more questions (what color is your car, why did you take Fifth Street, etc.).
So in the morphine question, above, the proper answer to that question is “let me see those records.” Because the records likely answer the question. In fact, the records likely show something different:
“Yeah, well, the BP was 60 at 10:40 when the patient came in unconscious, and then from 10:55 to 11:15 the patient was screaming in pain. The record indicates I gave the morphine at 11:15 after a BP of 145/90 was charted.”
That’s why whenever someone asks a “shaggy dog” question, a good client either says “I don’t understand your question,” or says “I can’t answer that the way it’s been asked.”
Now, if you ask a question, and you keep it short, and it asks for one piece of information, I’m going to have my client answer it. But if you ask for multiple pieces of information, or you combine information into the question, I’m going to object to it every time. This is because there are false narratives woven into questions all the time as shown above. This is especially true when a lawyer asks a leading question like “you still beat your wife, right?” So we always tell clients to listen carefully to the call of the question, and to answer only the call of the question.
Jeff Sessions gets a C- in my client book because he tried to be helpful to someone who was never going to be helpful to him. Here is the question that Weird Al asked Senator Sessions:
Franken: “CNN just published a story alleging that the intelligence community provided documents to the president-elect last week that included information that quote, ‘Russian operatives claimed to have compromising personal and financial information about Mr. Trump.’ These documents also allegedly say quote, ‘There was a continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government.’
“Now, again, I’m telling you this as it’s coming out, so you know. But if it’s true, it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?“
Alright, see what the call of the question is: “what will you do?” In other words, he isn’t asking Sessions if he has had contacts, he’s asking what he will do if there are contacts between Trump officials and Russians that go to the issue of interference in the election. Sessions at this point should simply have said “if there is evidence of criminal activity I will take the proper steps at that time.” He should have stopped right after that. But that’s not what he did:
Sessions: “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 didn’t have — did not have communications with the Russians, and I’m unable to comment on it.”
Okay, here’s what is a problem. When you volunteer information that is sworn, you have to tell the truth. Because he met with Russians, there is an argument – and an argument only – that he failed to be candid. But the question posed was in the context of “in the course of this campaign,” which is a stupid question anyway because the campaign ended three months earlier. So, Franken did not ask about his activities as a Senator. From the context it is clear that Sessions is saying he never met with any Russian as a functionary or surrogate of the campaign. But he now knows that he should have kept his mouth shut.
Of course, from now through the end of his term as AG there will be experts who come in and say he was volunteering details to make his denial seem more believable, and that, he knew he was committing perjury. All of this is nonsense of course because (1) no one is going to prosecute; and (2) even if they did there would never be a conviction. That’s because he did not lie. He did not lie because he did not answer the question asked. Moreover, the entire question was vague to begin with.
A question like “what will you do” is inherently speculative, and requires a person to hypothecate a set of facts and then decide how they’d handle them. Such a question would never be allowed in a court. This is why cross examination questions are always leading questions, short, limited to one subject, and something that the questioner already knows the answer to. If Al Franken had really known what he was doing – if someone had actually been doing their research and knew Sessions had spoken with the Russian Ambassador (like nearly every other member of the Senate), his questions would have been like this:
- You were a member of the Senate
- You were on the armed services committee.
- In that role you met with the Russian Ambassador.
- That occurred during the time Mr. Trump was campaigning.
- You would agree that during that time you were a surrogate for the campaign.
- How will you handle issues related to a probe into Russian involvement in the campaign?
Now Sessions is on the hook, with accurate questions, limited to one subject, from which there is no wiggle room. But that’s not what Weird Al did, and as a result, the whole idea that Sessions is a liar is premised on some supposed duty to anticipate what Franken was thinking (and we can’t really be sure Franken was thinking at all).
Truth be told the proper answer to all these questions would have been “What difference, at this point, does it make?”