Of Course There Is Such a Thing as a ‘Perjury Trap’

They point out that the president says many things that are not just inaccurate but knowingly false. In maintaining that there are no perjury traps, what they are really arguing is that Trump does not need to be “trapped” into perjury; that his lawyers’ claims about Mueller’s treacherousness are a smokescreen to hide their real worry: viz., that Trump will lie in the interview because that is what Trump does.

If that is what they think, then that is what they should say. It’s a perfectly coherent position, especially if one is predisposed to believe that Trump is incorrigible, and that he conspired with Russia to steal the election, then obstructed the FBI in order to cover it up.

But see, for charging purposes, the witness who answers the questions does not get to decide whether they have been answered truthfully. That is up to the prosecutor who asks the questions. The honest person can make his best effort to provide truthful, accurate, and complete responses; but the interrogator’s evaluation, right or wrong, determines whether those responses warrant prosecution.

.. There were some discrepancies between Flynn’s account of the discussions and the FBI’s understanding of them (we’ll come back to why). Did that necessarily mean Flynn lied? Of course not. To take the most obvious possibility, Flynn could have had an innocent failure of recollection. It happens to all of us; it would happen to you if you tried to describe this this column to someone without having a copy of it in hand.

The investigators and prosecutors had to weigh whether Flynn’s discrepancies were honest mistakes or conscious misstatements. It appears that the first set of investigators gave him the benefit of the doubt, but Mueller’s team drew the opposite conclusion. Yes, Flynn ultimately pled guilty, but when highly experienced investigators assess the same basic facts differently, the matter cannot be black-and-white.

..  The conversations happened months before the FBI asked him about them, so could he simply have remembered them wrong? Sure . . . but the investigators decided otherwise because Papadopoulos had a strong motive to fudge the timing: The conversations would seem innocuous if they’d happened before he joined the Trump campaign, but possibly sinister if after he joined, as was in fact the case. The fact that this was a sensible conclusion hardly makes it an ineluctable one.

.. In his fourth day on the job as national-security adviser, Flynn had every reason to believe Strzok was there to talk business, not because Flynn was a suspect. Flynn did not have a lawyer present. We do not know whether Strzok advised him of his Miranda rights (which is often done even when, as in Flynn’s situation, it is not legally required because the suspect is not in custody). Here’s what we do know: The Justice Department and FBI were so hot to make a criminal case on Flynn that they used the Logan Act — an unconstitutional blight on the penal code that has never been used to convict anyone in over 200 years — as a pretext to investigate him.

.. And what did they ask him about? Conversations of which they had recordings. Why on earth would it be necessary to interrogate someone — let alone a top government national-security official — regarding the details of conversations about which the FBI already knew the details? Why conduct an investigative interview, carrying potential criminal peril, under circumstances in which the FBI already knew

.. We don’t know for certain that the Flynn interview was a perjury trap. But it sure looks like one. And regardless of whether Flynn pled guilty because he is guilty (or because enormous pressure, such as the possibility of charging his son, was put on him), we also know that the question of whether to prosecute him was a judgment call — one on which Mueller aggressively said yes, when others had said no.

.. What we refer to as a “perjury” trap covers both perjury and false statements. The difference between the two is more form than substance. To oversimplify a bit, perjury is a lie under oath; a false statement or material omission is a lie told to government investigators when no oath has been administered; the potential sentence for both is zero to five years’ imprisonment.

.. Successful perjury traps do not get prosecuted all that often. But that does not mean perjury traps are uncommon. They tend to be used more for leverage than to prosecute as a stand-alone charge. A prosecutor who knows a reluctant witness will lie elicits the lie and then exploits the resulting specter of prosecution — along with other leverage points — to pressure the witness into spilling the beans. Or, in a jury trial, the prosecutor who suspects a defense witness will lie, sets the trap, elicits the lie, and then blows it up — not to lay the groundwork for a future perjury charge but to destroy the witness’s credibility, which helps win the trial.

Trump’s ‘Perjury Trap’: Confessing to Obstruction of Justice or Lying About It

Rudy Giuliani tells Axios that his client, President Trump, is currently willing to speak to Special Counsel Robert Mueller on the condition that he not be asked about two subjects: why Trump fired FBI director James Comey, and what Trump said to Comey about the investigation of former national security adviser Michael Flynn.

You might wonder if the specificity of this demand sounds just a wee bit suspicious, as if Trump’s lawyers are pointing frantically at a locked door at a crime scene and shouting “Don’t go in there!” You would be right.

.. The Russia scandal has followed an eerily similar fact pattern to Watergate. Both cases feature as the central underlying crime the burglary of private files from the Democratic National Committee in order to give Republicans an advantage in a presidential campaign. Both cases also feature the president leaning on the FBI to quash an investigation that might connect the burglary to the president and his inner circle.

..  We are accustomed — not only by Watergate but by every criminal or detective drama — to expect evidence to mount to a crescendo over time. Nobody knows quite how to respond to the spectacle of a president committing high crimes and misdemeanors in his first few weeks in office, and then simply confessing to them casually in a subsequent television interview.

.. A perjury trap is a real thing. The term describes when prosecutors lure a witness into giving false testimony, usually for reasons other than covering up a crime, knowing they can prove the claim was false, and then nail them for perjury.

.. The impeachment of President Clinton was a classic perjury trap. Special Prosecutor Ken Starr asked the president about an affair with Monica Lewinsky, knowing Clinton — like most people who have affairs, especially politicians — would lie about it.

.. Asking Trump about his attempt to manipulate his FBI director is not a perjury trap. The question is not extraneous to a crime, it is a crime. He was very consciously attempting to stop an investigation into his administration. The mere fact that his lawyers are discussing it well in advance indicates that the subject matter is not a perjury trap, because the “trap” aspect involves the witness not knowing beforehand that the question is designed to produce a lie.

Trump’s lawyers have presumably concluded that they have no defense of his obstruction of justice. Faced with a choice between admitting to obstruction of justice, or denying it and risking perjury, Trump’s choice is to avoid the question altogether.

Trump’s New Strategy for Responding to Robert Mueller

they are pursuing a fresh line of attack in public, shifting from proclaiming the president’s innocence to attempting to undermine the probe itself.

.. Giuliani tried to filibuster Cuomo from playing an old video clip where he contradicted his own comments from 1998 about whether the president can be subpoenaed.

.. Giuliani previously said that he’d negotiate an end to the probe within a week or two, which didn’t happen, and the president said he was wrong about some aspects of a reimbursement to former fixer Michael Cohen. But Giuliani’s remarks make clear that far from ruling out an interview, the president’s team continues to work toward a meeting with Mueller.

.. it was only two months ago that Trump first singled Mueller out by name in a tweet.

.. The new strategy, particularly as demonstrated by Giuliani on CNN, follows three prongs.

  1. First, impugn the investigators themselves.
  2. Second, argue that the investigation was tainted from the start.
  3. Third, argue that Mueller cannot indict Trump anyway.

.. The Cobb-Dowd strategy began with the assumption that Trump had nothing to hide. The new strategy, however, seems to take as its premise that Trump is guilty of at least something.

..

Mueller, a lifelong Republican who has served presidents of both parties, is a tougher case to make, so Trump has simply lied, claiming for example that Mueller worked for Barack Obama for eight years. Mueller was FBI director for nearly five years under Obama, having been appointed by George W. Bush.
.. Giuliani, for his part, has referred to officials in the FBI and U.S. Attorney’s Office for the Southern District of New York, both of which he praised in the recent past, as “storm troopers.”
.. They argue that the fact that the FBI was investigating Trump as far back as 2016 shows not only political motivation, but also that there is nothing to investigate.
.. The setting of arbitrary timelines is a common motif. Trump has repeatedly said there is no evidence of collusion, even as two of his former aides have pleaded guilty to lying to the FBI about contacts with the Russians, and despite the June 2016 Trump Tower meeting between a Russian lawyer, Donald Trump Jr., Jared Kushner, Paul Manafort, and others. Giuliani on Friday charged that Mueller’s probe “$20 million later has come up with nothing,” when in fact the investigation has been unusually prolific.

.. It may or may not be true that DOJ placed a spy in the Trump campaign, but there’s no public evidence for it. Someone inside informing the FBI about goings-on is not the same as the Justice Department sending someone under cover. Nor is it scandalous for law enforcement to use legal methods to investigate possible crimes.

.. We’ve heard this again and again. First, Trump claimed that Obama had “tapped” Trump’s “wires” during the campaign. This remark turned out to be nonsense, the result of a game of speculation in conservative media. Trump’s Justice Department said it was not true. Later, when it became clear that Manafort had been surveilled, some of Trump’s defenders claimed it vindicated his wiretap claim, which it did not, as I explained at the time. That’s a good reason to take the most recent claims skeptically, too. When Cuomo pointed out that Trump has often said false things, Giuliani blustered, “That’s a disgraceful comment about the president of the United States.” But he didn’t say Cuomo was wrong.
.. if anyone did commit crimes, they were being entrapped and led into crimes by DOJ infiltrators who sought to take down Trump’s campaign.
.. One doesn’t talk about whether or not one’s client can be indicted unless one believes that one’s client is likely to have committed some indictable crime. But the presumption of guilt has increasingly suffused the message of Trump defenders over the last month. It also surges through repeated warnings from Trump allies that Mueller might try to catch the president in a “perjury trap,” as though Trump could not avoid that by telling the truth.
.. The president appreciates aggressive media responses, and Giuliani is to a certain extent just aping the president’s own words.