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Phrase of the Week: Perjury Trap

Phrase of the Week: Perjury Trap

Perjury trap or not, Trump should not sit down with Mueller. But if there were any doubt, the real likelihood of a perjury trap set specifically for Donald Trump is added reason.

Should Donald Trump sit down to a face-to-face interview with Robert Mueller and his team?

The answer for me has been clear for a long time: Just Say No.

On January 24, 2018, I wrote, Trump should not voluntarily submit to an interview with Mueller:

Trump’s impromptu comments [that he looked forward to an interview] demonstrate, beyond a reasonable doubt, why Trump SHOULD NOT sit down with Mueller to answer questions, under oath or otherwise.

Trump is a salesman by nature. He’s given to bombast and hyperbole. He shoots from the hip.

Those characteristics, while they proved valuable against the comatose and drab Hillary, could be a disaster in an interview with Mueller. Mueller’s team is very experienced in these perjury and obstruction traps. They will not ask any questions they don’t already know the answer to, and the questions they ask will not be posed to obtain information. They have all the information. They will be probing not for information, but for mistakes.

Don’t do it. I don’t know what power Mueller would have to compel testimony, but nothing should be done voluntarily.

In early April I made the point on the Mark Levin Show:

I have since reiterated that position repeatedly, including when in May Rudy Giuliani seemed to suggest an interview was possible, Rudy’s terrible, horrible, no good idea about Trump sitting for a Mueller interview to speed things up:

This is a horrible idea on so many levels. It will not even wrap up the Russia investigation. It will end nothing.

If Mueller wants Trump to sit across the table from him and answer questions, he should have to fight for it, and Trump should fight back. To the Supremes if need be. This is about the survival of Trump’s presidency which is being pursued by Mueller’s posse of hired guns.

This also will not help Republicans in the midterms. You want to get Trump voters to the voting booth? Appeasing Mueller so he can drop his bombs by September 1 is not the way. If Mueller will not back off the interview setup, then precipitate a court battle over whether the presidency can be stolen. If you want voters to fight for you, then fight for yourself as an example.

In news of other horrible ideas, I plan on a Legal Insurrection “Swimming with the Sharks” trip just before which I will throw some blood in the water to see which way the current is moving.

The concept of a perjury trap has been made for months, but particularly in the past week. It’s the phrase of the week in the news cycle, with various media asserting that if Trump is willing to tell the truth, he has nothing to worry about.

Rudy has been pushing back hard:

President Trump’s personal attorney Rudy Giuliani slammed as an “idiot” a New York Times reporter during an interview Sunday on Fox News’ “Media Buzz,” saying it should be apparent that even honest clients run a major risk of falling into a so-called perjury trap if they agree to meet with federal investigators.

The Times’ Nicholas Confessore argued on MSNBC this week that Giuliani’s concerns that Trump might be charged with lying to investigators if he met with Special Counsel Robert Mueller’s team revealed that “the president’s story is wrong, it’s a lie.”
Giuliani unloaded on Confessore, saying prosecutors often aggressively pursue perjury charges even where the underlying truth of the matter involved is unresolved, and that it would be “malpractice” to ignore that threat.

“I don’t know if he’s deliberately being like that or if he’s a complete moron, Giuliani said. “The reality is, you can be accused of perjury when you’re telling the absolute truth. Let me give you an example for that idiot — which I attribute, really, to the malice of the New York Times.”

Giuliani then offered an extended hypothetical to illustrate his point.

“I didn’t come to your house last night,” Giuliani said to host Howard Kurtz, by way of example. “You’re lying, and you say I did come to your house. They put me under oath and I say, I didn’t come to Howie’s house last night. But they elect to believe Howie, even though Howie lied about it twice. I have no control over that. That’s what they did to Martha Stewart. And since that case, all of us lawyers have been very careful.”

https://youtu.be/NkFXyIKhSI0?t=2m5s

The best explanation for why a sit down with Mueller is a potential perjury trap, and how even a well-intentioned witness can fall into is, is in Andrew McCarthy’s post this weekend, Of Course There Is Such a Thing as a ‘Perjury Trap’.

McCarthy points out that a “perjury trap” as the phrase is commonly used, refers to both technical ‘perjury’ and giving false statements:

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.

McCarthy then makes the point that what constitutes a prosecutable offense is solely up to the prosecutor, so even a witness trying to be completely truthful can be prosecuted:

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….

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….

McCarthy’s example assume prosecutorial good faith.

I don’t assume that for the Mueller team, considering the legal team assembled and the tactics used so far.

So perjury trap or not, Trump should not sit down with Mueller. But if there were any doubt, the real likelihood of a perjury trap set specifically for Donald Trump is added reason.

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Comments

Close The Fed | August 13, 2018 at 9:28 am

Completely agree with the Professor. Only a delusional and foolish man would volunteer to talk to the putsch.

    EdReynolds in reply to Close The Fed. | August 13, 2018 at 10:17 am

    Or one with a huge ego.

      notamemberofanyorganizedpolicital in reply to EdReynolds. | August 13, 2018 at 12:41 pm

      They’re being trolled big time.

        notamemberofanyorganizedpolicital in reply to notamemberofanyorganizedpolicital. | August 13, 2018 at 12:58 pm

        Side note:

        Isn’t that illegal?

        The Media Are Hiding Their Knowledge and Duplicity – Buzzfeed, WaPo and New York Times Had Unredacted FISA Application For Over A Year…

        Fyi

        The Last Refuge

          No, why would it be illegal?

          The media can choose not to report whatever they want because they aren’t state run…they do that all of the time. It’s also why they are easily weaponized for selective reporting, something they also do all of the time.

          Also, to be clear, I’m not advocating for state run media, not by a longshot.

          Mr. know it all Milhouse with all his legal “knowledge” is quite sensitive. Rather than considering a person’s ideas, he attacks based upon his supposed expertise in legal matters, and strikes out time after time. Of course it was illegal for media sources to be given FISA applications. Congress has been denied this information (without major redactions and only after subpoenas/threats). FISA information is extremely sensitive, confidential data. The laws governing FISC cover that. Any rational person knows this.

          The ignorant and dishonest Lombardi strikes again. Did I suggest it was legal for them to be given the information? No, I didn’t. But why would it be illegal for them to have it, let alone to keep it secret and act as if they didn’t have it?

          Meanwhile I’m still waiting for your apology and acknowledgment that I was completely right about aliens being subject to conscription, and when you ridiculed me for it you didn’t know what you were talking about.

    david7134 in reply to Close The Fed. | August 13, 2018 at 11:52 am

    If you are compelled to give a legal statement, doesn’t it require that the investigators at least have a crime that they are investigating? So far, I have not heard of a specific crime that Trump or anyone else has committed associated with the campaign.

      david7134 in reply to david7134. | August 13, 2018 at 11:56 am

      By the way, I have given testimony in deposition and trial and told the truth as far as I knew it. Yet, the answer to one of more questions will always be different in the two situations depending on leading questions from the attorney. I asked an attorney about this and he said there is no way that you can consistently tell the truth, even though the intent is present.

      pwaldoch in reply to david7134. | August 13, 2018 at 1:27 pm

      david 7134: Exactly! And that would be a line of attack for Giuliani if Mueller and Co try to force the issue of a interview, as long as President Trump doesn’t volunteer to meet and walk straight into the trap. If Mueller trys to force a interview from a legal standpoint, he does risk having the investigation getting shutdown with counter legal arguments that he hasn’t done what he was originally appointed to do.

      healthguyfsu in reply to david7134. | August 13, 2018 at 5:44 pm

      Rumor is they have something on Trump…junior

      They are trying to use that as leverage to get Trump under oath for a perjury trap and it may work.

      Just a rumor, though.

        Don’t believe anything you hear and much less than half* of what you see and you will have an easier path through life.

        * Used to be half, but that was before Photoshop and other methods of manipulating video and still images.

pablo panadero | August 13, 2018 at 9:39 am

Perhaps Trump is setting up Mueller. How about he demands the same treatment as Hillary got – no swearing in and no recording of the interview? And all evidence destroyed after the interview!

    Milhouse in reply to pablo panadero. | August 13, 2018 at 9:59 am

    The FBI never records interviews. That way they can say whatever they like about what happened and it’s your recollection against theirs. Juries will always assume their recollection is better and more honest than yours.

      There is an exception to that, Milhouse. They will sometimes secretly record interviews in order to verify their 302 forms between agents, but when the 302 is files, the recording is deleted.

        iconotastic in reply to georgfelis. | August 13, 2018 at 3:17 pm

        What if the interviewee records the interview. Can that be used to defend against perjury/obstruction charges?

        I recognize that at the federal level the process is the punishment. Few can afford to fight the unlimited budget of a malevolent federal prosecutor.

      buanadha in reply to Milhouse. | August 14, 2018 at 8:26 am

      Believe they’ve changed the rules to allow for recordings, but have heard that in practice recordings are still never made

    Do you seriously believe that would happen, even if Mueller agreed to it?

Did Giuliani really say, as he is quoted in the first video clip, that the President will answer questions about collusion or obstruction “but no perjury traps”?! Because that makes no sense. There isn’t a specific type of question that you can point to and say “that’s a perjury trap”. Giuliani will not be able to sit at the deposition and say “Objection, that’s a perjury trap, and we agreed my client wouldn’t answer those”. A perjury trap is any question to which the prosecutor already knows the answer, or to which he thinks he knows the answer, or that has already been asked and answered, and therefore could now be answered differently. Any question could be a perjury trap, and one has to assume every question is one. The only way to avoid them is not to answer anything at all.

    txvet2 in reply to Milhouse. | August 13, 2018 at 10:12 am

    I don’t see why anybody would sit down for an interrogation by an prosecutor without filling each and every sentence with as many weasel words and qualifiers as they could fit in.

      Edward in reply to txvet2. | August 13, 2018 at 7:25 pm

      If a person is smart they don’t sit for any interview. If you are in the sights of an LEO, you don’t help him make a case against you, he can do it on his own if he’s right (and might anyway if he’s not). I’m reminded of the defense lawyer out in West Texas who put up a billboard informing people of their right to refuse a search of their vehicle. Pissed off law enforcement so much they used a provision (IIRC) of Lady Bird Johnson’s Highway Beautification law to force the removal of the billboard. Our youngest son got in trouble for agreeing to a local town cop’s search. In trouble with me, nothing in the car, but he had been told he was never to give consent to a search and to keep track of the time of the stop.

        Milhouse in reply to Edward. | August 13, 2018 at 8:02 pm

        I did once allow a policeman to search my car, because he had me dead to rights on speeding, and I hoped that if I let him search and he found nothing he’d let me off the ticket. My hope proved correct. After a very thorough search indeed, which lost me all the time I’d gained by speeding and more, he accepted that there were no drugs to be found in my car, and let me go with a warning.

        txvet2 in reply to Edward. | August 13, 2018 at 8:22 pm

        Unless you’re president, you can’t avoid a subpoena, but of course you can always plead the fifth, in which case it seems to me that any “evidence” the prosecutor intended to use to spring his perjury trap just becomes part of the unrebutted prosecution case.

regulus arcturus | August 13, 2018 at 9:58 am

The only reason for Trump to sit down and talk with Muller is if he fires him on the spot.

I suspect there is a real reason they are pressing Sept.1 as a deadline for Mueller to wrap it up. Team Trump. I believe Team Trump has a bomb they will drop on Team Mueller if the drama goes past that date.

I think doing any sit down with Mueller is dangerous. The whole investigation is drummed up as a means to use against Trump, this is a set up and if Rudy goes along with it, as Trump’s lawyer, then I truly wonder which side Rudy is on.

Just say no.

    txvet2 in reply to oldgoat36. | August 13, 2018 at 10:10 am

    Giuliani’s rhetoric, if not his attitude has evolved pretty substantially since he took over the job. He started out more or less with the attitude that an interview was a given.

Trump talks about two subjects, and he addresses different audiences when he does.

When he talks about his agenda, which is, in essence, MAGA, he talks to his voters, to businessmen, to laborers and farmers, to the Russians, the Chinese, and the rest of the planet. The proper way for him to speak is clearly, forcefully, with little wriggle room or dissembling; to skip the mellifluous oratory; say something real and stick to it, tenacious, adamantine, no matter what the whining he hears in response.

When he talks about anything else, from ageing prostitutes to Team Mueller, he talks to the Resistance, The Swamp, the Fake News industry, and Democratic low-lifes. The proper way to handle this crowd is through vaguery, innuendo, platitudes, misdirection. Toss them chopped fish and let them blunder into the briar patch on their own.

After two years, some listeners still can’t distinguish between these two audiences and modes of address. They evaluate one in terms appropriate to the other, and end up very confused.

When the President talks about The Wall, that’s one Trump talking to one audience. When he talks about a breezy chat with Tomás de Torquemada, that’s the other Trump talking to a different crowd. My guess is that Trump himself hasn’t lost track of which is which. Of course, if I’m wrong, then it’s le déluge, and I’ll give everybody a refund.

assemblerhead | August 13, 2018 at 10:35 am

This clip still sums up the situation perfectly :

https://www.youtube.com/watch?v=4F4qzPbcFiA

Hoping up and down on an armed landmine would be safer than sitting for that interview.

If a prosecutor has good faith about interviewing you for a crime which you are not guilty, there is no concern about wandering into a perjury trap.

In the real world, and with this prosecutor who has no end of *bad* faith… no. Heck no.

That being said, the *public* reaction to a president who says he will not talk with a prosecutor will be warped, twisted, contorted, and blasted out as some sort of confession to the fictional crime being investigated. Understanding that, Trump has publicly stated he would be willing to talk with Mueller if X, Y, and Z are met, while I’m confident that he has no such plans.

Fantasists versus conspiracists, may the glibbest tongue win.

A point of law that maybe some of the lawyers around here can answer.
I’ve heard Guiliani and before him several other lawyers say that should Mueller subpoena Trump, and Trump fights it: Mueller would have to show that the only way he can get the answer to questions is by asking Trump. That if he can get answers to questions in any other way, then the court can quash those questions.

Is this true? Does anyone know the specific statute? Is this limited to executive office witnesses? Federal grand jury witnesses? Witnesses in special prosecutor investigations?

    Milhouse in reply to RodFC. | August 13, 2018 at 1:03 pm

    There’s no statute about this, but the president’s time is valuable, and unless the deposing lawyers have a compelling need for his testimony he can just say “I’m too busy to meet you”.

    Edward in reply to RodFC. | August 13, 2018 at 7:53 pm

    On a motion to quash a subpoena for interview (or anything else actually) the attorneys filing the motion will claim undue burden to comply and ready availability of the information from other sources. The issuing authority will need to show the Court hearing the motion that there is no other way to obtain the information and there is no undue burden on the person served. If the attorneys filing the motion to quash can show that the information is available from other sources, or the issuing entity can’t make the case that the subpoenaed person is the sole repository of the information, the Court is supposed to rule for the motion (whether a busy President or John Doe who would be required to take time off from work who, as a practical matter, can’t afford the attorney to fight the subpoena).

    Rule 26(b)(2)(C) also requires courts to limit discovery where “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive” and where “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action;

I raised my two children to ask themselves one simple question when they were troubled by a decision that confronted them. That question is “What is the best and worst thing that can come out of this?”.In Trump’s case the best would NEVER be realized because the msm would not publish it. Anything other than total exoneration would be a loss for Trump and that is very unlikely. Even then the msm would say yes but….

Candle and moth scenario…. however the candle has a proximity fuse. It is harder for the press to twist something that never was versus anything that happened. Look how far things have gone with nothing to really show for it… to Mueller and the Left any fingerhold on a “crime” is worth it. Mueller is taking cues from Beria and Tomas de Torquemada.

I hope I’m right that Trump and team know better than to sit for a crook, conducting a crooked “investigation”, where no crime has been *committed. I do not believe they are that stupid and assume everything is just a game being played. Cats and lasers come to mind.

*not by Trump, shrillary is a different matter

Sigh. Even Erin Burnett gets it but the Professor does not.
As Derschowitz has been saying for the last two weeks Trump’s team is making Mueller “offers he can’t accept”. I don’t expect that to change anytime soon.

In the end I suspect that Trump will answer some written questions. ( Though that may not be a good idea> Mueller might charge him with having poor penmanship. ) Possibly have an interview, but under conditions so slanted it would be almost impossible to get into trouble.

As for Trump himself, I have long since realized that he is a business/political version of Colombo. He looks like he is bumbling, but there is a lot going on underneath the surface. People underestimate him all the time, at their own cost.

Don’t talk to police:
https://www.youtube.com/watch?v=d-7o9xYp7eE&t=285s

Everyone should view this video twice a year, esp. if you’re the gabby type.

Why is Mueller still wasting our money? No crime was found. Mueller, go home!

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