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.

Why are Republicans hiding Peter Strzok’s testimony?

He testified in a closed session before the House Oversight and Judiciary committees on Wednesday.

The president and his supporters argue that Strzok’s early involvement in the Russia probe taints the entire investigation. On Thursday Trump tweeted that Strzok “was given poor marks on yesterday’s closed-door testimony” and that Strzok’s role in the Russia investigation was further evidence of the “witch hunt” against him. But although the president himself had called for Strzok’s testimony to be public, Congress did not agree.

Strzok certainly doesn’t act like someone with anything to hide. He offered to testify publicly and without a subpoena. He didn’t take the Fifth or demand immunity. Unlike the president in his dealings with special counsel Robert S. Mueller III, Strzok did not haggle for months over the terms or scope of an interview.

.. based on a few dozen text messages out of more than 40,000 that he and Page exchanged on FBI devices.

.. “We’ll stop it” text message? Most have assumed that “we” means the FBI. But it’s at least as likely that Strzok, in a personal message to his girlfriend, was referring to we the voters, or we the American people. That would have been an unremarkable sentiment shared by about half the people in the country

.. It’s quite a leap to go from that text message to a claim that Strzok tried to use his official powers to tip the election.

And there’s no evidence that he did.

.. Maybe Strzok really was part of a “deep state” conspiracy to take down Trump — even though everything the FBI did during the email investigation actually ended up hurting his opponent.

.. Maybe that same conspiracy now infects Mueller’s probe. If that’s the fear, what’s the argument for keeping Strzok’s testimony secret?

.. These congressmen who claim to be interested in transparency and full disclosure should be eager to make Strzok’s testimony public — particularly since the president claims that testimony will provide evidence of the “witch hunt” against him. So what are these Republicans hiding?

.. Strzok’s text messaging habits, however imprudent, have nothing to do with the merits of the Mueller investigation. Keeping his testimony secret leads only to selective leaks, spin and speculation.

Documents suggest possible coordination between CIA, FBI, Obama WH and Dem officials early in Trump-Russia probe: investigators

Newly uncovered text messages between FBI officials Peter Strzok and Lisa Page suggest a possible coordination between high-ranking officials at the Obama White House, CIA, FBI, Justice Department and former Senate Democratic leadership in the early stages of the investigation into alleged collusion between the Trump campaign and Russia, according to GOP congressional investigators on Wednesday.

Lois Lerner’s Last Laugh

If Congress did its job, nobody would be talking about another special counsel.

When House Intelligence Committee Chairman Devin Nunes subpoenaed documents and testimony from the FBI and Justice Department, he was stonewalled for months. In a last-minute bid to circumvent the committee’s demands, FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein met with Speaker Paul Ryan. The two men ended up agreeing to comply with the subpoenas—but only because Mr. Ryan informed them they would be found in contempt if they did not.

This kind of stonewalling has fed the agitation on Capitol Hill for a second special counsel, who would look into everything from the FBI’s handling of the Clinton email investigation to the use of the Christopher Steele dossier to obtain warrants to listen in on members of the Trump campaign. The calls are mistaken. But the frustration is real

.. But missing here is any discussion of the powers Congress itself has, including but not limited to the subpoena and contempt powers that ultimately forced Mr. Wray and Mr. Rosenstein into compliance.

.. If it only has the backbone, Congress can get what it wants out of the federal bureaucracy. Several executive-branch officials—including Justice’s Bruce Ohr and FBI lovers Peter Strzok and Lisa Page —will soon testify before the House Intelligence Committee. Possibly some or all of them will invoke their Fifth Amendment right against self-incrimination.

If Congress insists on its prerogatives, however, that wouldn’t be the end of the story. Witnesses who plead the Fifth can still be compelled to testify. The price is that the compelled testimony, and evidence derived from that testimony, couldn’t be used against the witness in a prosecution.

A special counsel might not like this, given his emphasis on indictments and prosecutions. But Congress should, because its end goal is political accountability. Which would be up to the American people to impose after learning exactly what abuses have transpired.