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

Studies will someday be done on the deleterious effect Donald Trump has had on the brains of people who loathe him. It drives them to say things that are as palpably foolish as some of the president’s own doozies. This week’s winner: There is no such thing as a “perjury trap.”

Because some of the people making this nonsensical claim are very smart, let’s stipulate that the heated moment we find ourselves in is driven by politics, not law or logic.

Special Counsel Robert Mueller wants to interview President Trump. President Trump’s legal team is taking the public position that, although the president wants bigly to answer Mueller’s questions, the lawyers are discouraging this because it could be a “perjury trap.” That is, Mueller’s prosecutors could be plotting to trip the president up, to dazzle him into saying something inaccurate that could be grist for a false-statements prosecution.

Of course, this drives Trump antagonists to distraction. 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 it’s just silly to claim that perjury traps do not exist. It is an iteration of the overarching illogic that takes hold when a Republican — especially the incumbent Republican — occupies the White House, to wit: Presidents can be irredeemable reprobates, but prosecutors and investigators are pure as the driven snow, and to question their scruples is to undermine the rule of law itself.

Let’s take scruples out of it for a second. Hypothetically, let’s assume a world in which everyone acts in good faith. The flaw in the “there are no perjury traps” nostrum is that it takes two to tango.

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 theme the anti-Trump camp is pushing — again, a sweet-sounding political claim that defies real-world experience — is that an honest person has nothing to fear from a prosecutor. If you simply answer the questions truthfully, there is no possibility of a false-statements charge.

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.

Remember, we are for now assuming, arguendo, everyone’s bona fides: The witness is being honest, and the prosecutor is not trying to dupe the witness into an inaccurate statement. Even so, most interrogations are not confined to simplicity. In investigations, even straightforward fact patterns implicate the operation of the witness’s mind; the witness’s attention span; the witness’s capacity to perceive, recall, and relate pertinent details. It is the rare interview that is just a matter of the prosecutor asking, “What’s two plus two?”

The Mueller investigation itself abounds with examples of this. Former national-security adviser Michael Flynn was questioned about his conversations with Russian ambassador Sergey Kislyak. 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 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.

Or take the George Papadopoulos case. The false-statements charge against him was largely based on misleading investigators about the timing of his conversations about Russia. 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.

Now let’s climb down from our hypothetical perfect world to the world we actually inhabit, where we find not only mendacious witnesses but devious prosecutors.

Back to Flynn’s case. As we’ve noted, the FBI and the Justice Department had an understanding of the Flynn–Kislyak conversations that was different from Flynn’s. That’s because they had recordings of the conversations — likely because the Russian ambassador, an agent of an adversarial foreign power, was being monitored.

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.

Put this in context. Investigations are generally handled by FBI field offices, not headquarters. Normally, the FBI sends a line agent to interview the subject of the investigation, and the questioning commences only after the subject is informed of the purpose of the interview. But Flynn’s case was run out of headquarters, with the FBI’s top brass in consultation with the acting attorney general. To conduct the interview, the bureau dispatched to the White House Peter Strzok, the FBI’s top counterespionage agent, who generally worked on intelligence cases, not criminal probes. 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 (a) it was Flynn’s job in the Trump transition team and as incoming national-security adviser to consult with foreign counterparts and (b) Flynn had not floated any arguably corrupt quid pro quo to Kislyak (e.g., sanctions relief as a reward for Russia’s support of Trump’s presidential bid)?

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.

It is fair enough to say that Flynn could have made the prosecutor’s job more difficult by being fully accurate in his answers. But anyone can give inaccurate answers because we are all subject to human error; the point is that the decision about whether the inaccuracies are criminally actionable — or whether they are inaccuracies at all — is the prosecutor’s. Even the most honest witness cannot unilaterally dictate the outcome by being perfectly truthful.

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.

In any event, it is fatuous to claim that this stuff doesn’t happen. It happens all the time. If you want to say that President Trump’s lawyers are just making excuses for a client who is prone to lie without being trapped, that is a cogent legal argument. If you instead insist that there is no such thing as a perjury trap just because the concept is being invoked by lawyers for a president you despise, then you’re playing politics . . . or you’ve let your contempt for Donald Trump get the better of you.

WATCH NOW: Trump’s Legal Team Responds To Mueller On Interview