Jeffrey P. Gale, P.A. // Learn Basic Rules of Giving Sworn Testimony from Jeff Sessions’ Testimony to Congress

Countless times we have prepared witnesses to give sworn testimony. At the very outset we go over the basic rules: 1. Listen carefully to each question and make it is fully understood before answering; 2. Only answer the question asked. If that can be done with a simple yes or no, answer accordingly. If an explanation is required, be short and sweet with it. Do not jump onto a soapbox and give a speech; 3. Do not be a wise guy or hostile to the questioner. If, for whatever reason, the question is inappropriate the witness’ lawyer will make an objection, and, if necessary, instruct the witness not to answer (e.g., where attorney/client communications are involved); 4. BE TRUTHFUL!!!

On June 13, 2017, U.S. Attorney General Jeff Sessions testified under oath before the Senate Intelligence Committee: 25 Times Jeff Sessions Had a Convenient Memory Lapse While Testifying. In our considered opinion, AG Sessions violated all of the above rules, especially #4.

Many witnesses believe that answering, “I don’t recall,” or “I don’t remember,” is clever, will put the questioner in his or her place, and somehow advances their cause. While these responses are proper when true, when not true they are lies. Additionally, when untrue the response can come back to bite the witness. Take the Sessions testimony, for example. He swore under oath that he could not recall conversations and meeting. This leaves the field wide open for other witnesses to discuss the conversations and meetings, and with Sessions having painted himself into the “memory lapse” corner, he won’t be able to refute or will look ridiculous with an all of a sudden recollection.

In our experience, the degree and extent of Sessions’ memory lapses on such important matters, about which he knew he would be questioned, is highly unusual and suspect. We’ve had witnesses unable to remember the name of a doctor from 15 years ago or a former address, but never anything of major importance and relevance, especially where the events happened relatively recently.

Also troublesome was Sessions’ inability to be able to provide the citation to the Justice Department policies and procedures he claimed prevented him from discussing certain conversations. He knew in advance that he would be claiming those policies and procedures to keep from giving important testimony. It does not square. In his defense, the U.S. Supreme Court does recognize the concept of Executive Privilege and its application in certain circumstances. The privilege belongs to the President and it is his responsibility, through legal counsel, of course, to assert the privilege. The privilege does not belong to Sessions. The privilege must be asserted on a question-by-question basis rather than by broad stroke. This means that a Trump lawyer should have been sitting at the witness table with Sessions to make or not make the objection to individual questions. Since it wasn’t done that way, the alternative is for Congress to submit questions to Sessions or Trump for a formal legal response regarding each. Answer or have the President assert privilege. Assertion of the privilege can be challened in court.

All-in-all Sessions’ testimony did not pass the smell test. Something’s not kosher. If he were our client, we’d haved filed a Motion to Withdraw [from representing him] first thing this morning.