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The weakest defense in Washington? Saying ‘I don’t recall’

Some of President Donald Trump’s closest confidants seem to be suffering from an affliction common in high-stakes White House investigations: memory loss.

In his recent testimony before the Senate Intelligence Committee concerning his role in the unfolding Russia saga, Attorney General Jeff Sessions answered questions with some variation of “I do not recall” more than 20 times.

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Amnesia is often a favorite response from witnesses in criminal and congressional investigations, and it’s often the most truthful reply—but people caught up in scandals can wind up facing perjury or other charges if prosecutors can later show they were intentionally trying to dodge tough questions.

“Simply repeating the words ‘I don’t recall’ is not a magical amulet to ward off any further trouble,” said Richard Ben-Veniste, a former Watergate prosecutor.

Faulty memories have had a starring role in most major modern presidential scandals. Several top Richard Nixon White House aides went to prison in part for perjury after insisting they couldn’t recall details surrounding Watergate that later proved disingenuous. President Bill Clinton professed to memory lapses as he struggled to explain himself during grand jury testimony and a deposition covering his extramarital affairs that led to his impeachment in the House. And Vice President Dick Cheney’s senior aide, I. Lewis “Scooter” Libby, tried unsuccessfully to use frail memory in his 2006 trial as part of his defense over why he misled investigators looking into the leak of CIA operative Valerie Plame Wilson’s name to reporters.

Few on Trump’s team have reached the point of giving testimony about the Russia investigation under oath, but current and former top aides have invoked memory lapses or made other omissions to defend their activities to their colleagues or the press.

Michael Flynn, the former White House national security adviser who Senate Democrats last week suggested is cooperating with federal investigators, was fired in February after giving “incomplete information” to Vice President Mike Pence concerning his calls with Russian officials during the transition. He’s since been dinged repeatedly for leaving relevant meetings and foreign government payments off his financial disclosure forms.

Amid media reports that Trump son-in-law and White House senior adviser Jared Kushner had at least three undisclosed contacts with Russian diplomats during and after the campaign, his lawyer responded that he had “no recollection” of the alleged exchanges.

“The ‘I don’t remember’ defense is very dangerous,” said John Dean, the former White House counsel under Nixon, whose 1973 Senate testimony recounting details on the Watergate cover-up earned him the nickname the “human tape recorder.”

If prosecutors decide to push perjury claims, Dean noted, ”You’ve got to convince a jury that you really don’t remember.”

Memory is a common point of discussion between attorneys and clients. One prominent white-collar defense attorney working for someone mired in the Russia probe said faulty recollection can be especially problematic for busy White House or campaign staffers who may not recognize the significance of what may seem in the moment like a mundane event, until they’re facing investigators who hone in on it.

“When you’re experiencing it in real life you see a rainstorm. You don’t see individual drops. The significance for you when something actually is happening is fundamentally different than someone may attach looking back at it,” the lawyer explained.

Veteran prosecutors say they rarely buy the ‘I don’t recall’ defense – and it’ll likely carry little weight in the Trump-Russia probe as an explanation for forgetting details about a 2016 campaign that played out under the constant media attention of hackings, stolen emails and warnings from the Obama White House concerning Russian espionage.

“It’s hard for me to imagine that an interaction with a Russian national, a member of the Russian government, isn’t going to be freighted with a great deal of significance” in a witness’s memory, said Peter Zeidenberg, a former federal prosecutor and now a partner at Arent Fox. He specifically questioned the response from Kushner’s lawyer that he couldn’t recall any calls with the Russian ambassador because of the overall number of calls he had during that time.

“He didn’t engage in thousands of calls in the time period. He didn’t have thousands of calls with Russians. And if he did that’d be pretty significant in and of itself because he never reported that. And if he had a few calls with Russians I’d think you’d remember that,” Zeidenberg said.

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In an email, Kushner’s attorney Jamie Gorelick offered the same push back she gave to the original Reuters report about the White House staffer’s contacts with Kislyak. “Is there any evidence that such contacts occurred?” she asked.

Attorneys for Flynn declined comment, as did Mark Corallo, a spokesman for Trump personal attorney Marc Kasowitz. Peter Carr, a spokesman for special counsel Robert Mueller, also declined comment. Chuck Cooper, an attorney for Sessions, did not respond to a request for comment.

Memory experts say it’s understandable that both witnesses and potential investigative targets could go blank or mangle crucial details while under a prosecutor’s microscope. It happens all the time, and in less high-stakes legal situations like Hillary Clinton incorrectly recounting how she came under sniper fire during a visit to Bosnia, or NBC’s Brian Williams losing his primetime anchor slot because of repeated on-air exaggerations.

“Educated successful people in society can have pretty huge false memories,” explained Elizabeth Loftus, a University of California-Irvine psychology professor.

Mistaken memories could be especially problematic for Trump officials who are being asked to recount their comings and goings during the hustle of a chaotic presidential campaign that keeps receding in the rear-view mirror. Lawyers and crisis consultants who have been in similar situations say potential witnesses and investigative targets are always advised to never say “I don’t recall” when they do remember something.

Attorneys also stay busy trying to track down and review any materials they can obtain from their clients and other witnesses – notes, listings of phone calls, meetings and schedules – which can help illuminate an investigator’s potential line of questioning.

“This is why lawyers will never let their clients appear or say anything until they’ve had a chance to review as much of the written record as they can get their hands on,” said Adam Goldberg, a former Clinton White House special associate counsel.

“Few of us have perfect memories and particularly in circumstances in which you’re under a great deal of pressure it’s easy to be hasty, it’s easy to be defensive,” added former Clinton White House counsel Jack Quinn. “It’s human to be somewhat inaccurate but you’ve got to take great care not to make categorical statements that may be a product of a failed or imperfect memory.”

Rep. Trey Gowdy is pictured. | Andrew Harnik/AP Photo

During Sessions’ appearance before the Senate Intelligence Committee earlier this month, Sen. Kamala Harris (D-Calif.) took note of the attorney general’s repeated “I do not recall” responses and asked whether he had tried to use notes, emails or other documents to help trigger his memory about the campaign.

“I attempted to refresh my recollection but so much of this is in a wholesale campaign of extraordinary nature that you’re moving so fast that you don’t keep notes, you meet people,” Sessions replied. “I didn’t keep notes on most of these things.”

Trump surrogates are raising alarm over the legal risks that current and former campaign and White House aides may face if their memories prove to be faulty. In his daily newsletter, Mike Huckabee last week complained about Mueller’s expanding investigative team and the “intense pressure to find something – anything – to charge someone with.”

“That’s when the investigations start expanding like the Blob,” added Huckabee, the former Arkansas Republican governor and father of Trump White House principle deputy press secretary Sarah Huckabee Sanders. “People start getting prison sentences for misremembering a detail while giving testimony, like Scooter Libby, or Martha Stewart, who was never charged with insider trading but was imprisoned for misleading investigators by denying a crime that she was never even charged with.”

President Donald Trump is pictured.

Faulty memory hasn’t been a sound defense in criminal cases for other past senior White House aides. During a preliminary phase of Libby’s trial, a federal district judge rejected a request from his defense lawyers who wanted a memory expert to testify to the White House aide’s challenges in keeping tabs on all his interactions in an otherwise busy schedule. Judge Reggie Walton concluded the testimony would be a ”waste of time” and could mislead or confuse the jury. Libby was later convicted on two counts of perjury, as well as for obstruction of justice and making false statements.

During Watergate, Nixon urged both Dean and White House Chief of Staff H.R. Haldeman to play coy in the event they were asked to give testimony about the scandal before a grand jury or Congress.

“Just be damn sure you say, ‘I don’t remember, I can’t recall. I can’t give any honest – an answer to that that I can recall.’ But that’s it,” the president said in a March 1973 Oval Office meeting, according to an audiotaped transcript of the meeting that Nixon unsuccessfully fought – all the way to the Supreme Court — to keep under seal.

Haldeman, along with Attorney General John Mitchell and White House aides John Ehrlichman and Dwight Chapin, all were convicted in part for perjury tied to the Watergate investigation. Dean, meantime, pled guilty to a single felony count and became a key government witness for the prosecution. In an interview, he acknowledged that even his widely-praised recollection of the Watergate cover-up couldn’t compare with the details revealed in the Nixon White House tapes.

“Memory is probably the worst way to reconstruct history as possible,” Dean said. “We all have highly fallible memories. There’s nothing that beats explaining Nixon’s behavior on Watergate better than the tapes because they’re real time.”

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