11

I know this question is about a hot topic in US politics, so I ask that comments and answers be mindful that I'm asking in good faith, and without an attempt to either discredit or support our current POTUS. I'm asking out of good old-fashioned curiosity.

I've been hearing a lot in the news about the current POTUS legal team worrying that an interview with the special investigations team would be a "perjury trap". My understanding of perjury is that it requires a willful and knowledgeable lie under oath. Simple misspeaking, as all humans do at times, should not be considered perjury because it is not a willful attempt to lie under oath. With this being said, questions that guide a person toward lying under oath cannot cause perjury because the "trapped" person is not willfully lying (I'm assuming that they are telling the truth to the best of their knowledge and ability while under oath).

I'm fairly certain that, for the POTUS legal team to be worried, there must exist a precedent or legal loophole that proves my previous statements wrong. My question stands as In the United States, how can a person telling the truth under oath be 'trapped' into perjuring themselves? Has this happened before?

I'm looking for answers that either demonstrate a precedent, or shows the possibility given the definition of perjury and the current political/legal climate in the USA.

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    Since the core of the question would apply to the general population and not only to politicians (i.e., the general population would be equally "at risk" with those tactics), I think this belows to law.stackexchange.com – SJuan76 Aug 21 '18 at 15:27
  • I had considered that, and had specifically left it open to all people, not just politicians. If it doesn't belong on Politics.SE then it will be migrated by the mods to Law.SE – GOATNine Aug 21 '18 at 15:28
  • The following video explains the perils of talking to the cops or the lawyer in the middle of an investigation. Consider it for your research. youtube.com/watch?v=d-7o9xYp7eE – Drunk Cynic Aug 21 '18 at 19:07
  • @DrunkCynic at 45 minutes, it'll have to wait until I'm off work for the day, thanks for the link though! – GOATNine Aug 21 '18 at 19:36
7

There's definitely a political aspect to this question as well as a legal one.

For the political aspect, Special Counsel Robert Mueller wants verbal testimony from Trump because it allows for a better evaluation of the veracity of a witness's claims and it allows him to follow-up in real-time. Even if Mueller suspects Trump will commit perjury under these conditions, it's not a perjury trap anymore than a prostitution sting is entrapment. Mueller is looking into a wide array of contacts during the campaign by high ranking campaign officials, advisors, and Trump's kids. Not to mention the suspected obstruction of justice charge relating to the Comey firing. Mueller isn't bringing Trump in to create a perjury charge, but to testify about suspected crimes, some of which personally involve Trump. It may be an interview with a high risk of committing perjury, but that doesn't make it improper in the slightest.

I think this is distinct from the legal aspect of your question, though, as to what exactly constitutes a perjury trap. The perjury trap was written about extensively in the University of Pennsylvania Law Review in 1981. To summarize, a "perjury trap" is when the prosecutor suspects a witness of criminal activity, but there is not sufficient evidence to prove a substantive crime, but there is sufficient evidence to prove a witness's false denials. You can read many examples in the paper itself, but I'll quote one such example to show that there needs to be a difference between an "honest investigation" and "intentionally setting up the witness to perjure himself":

Assume that during an investigation into political corruption, government investigators using a court-ordered wiretap secretly overhear a telephone conversation between a person named White, leader of a local political party, and an acquaintance of his named Singer, a real estate developer under scrutiny by the district attorney's office in connection with alleged pay-offs to housing inspectors. A transcript of a portion of the ten-minute telephone conversation follows:

WHITE: Get to the point.

SINGER: Let me ask you this. The D.A. says I gave money to building people. I'm being looked at very closely.

WHITE: Who's talking?

SINGER: I don't know. That's one of the things I wanted to ask you. Who it is and whether this thing can be worked out. You don't know what it's doing to me.

WHITE: Do you have a lawyer?

SINGER: I haven't talked to one yet.

WHITE: Well, you should get a lawyer who knows his way around, I mean a lawyer who can talk to these people.

SINGER: Knows which people?

WHITE: A lawyer who can straighten things out, who knows the D.A. Why don't you talk to my brother Al. He's been there before. He knows how to handle these things. Talk to him. He may be able to help you. If anybody can quash it with the D.A., he can.

Four months later, White was subpoenaed to appear before a grand jury. Prior to his appearance, and represented by counsel, White was informally advised by the prosecutor that the grand jury was conducting an investigation into official corruption, including the crimes of bribery, conspiracy, and official misconduct, and that it desired to question White in that regard. White was advised by the prosecutor that he was not a target of the investigation, that he could refuse to answer any questions by invoking his fifth amendment privilege, and that in the event he chose to invoke the privilege, the grand jury would compel his testimony by conferring transactional immunity upon him. White's attorney stated that White would cooperate fully with the grand jury but would request immunity. The prosecutor agreed.

After taking the oath, White was questioned by the prosecutor. Following preliminary background questions, White was asked whether he had ever intervened on anyone's behalf to influence official actions in a legal proceeding. White stoutly denied that he had ever done so. White then was asked whether he knew a person named Singer, and whether he had talked to him recently. White said he had. The prosecutor then engaged White in the following interrogation:

Q. You say that Singer asked you for advice?

A. Yes, he asked me for advice on a legal matter and I told him I couldn't give him any advice.

Q. Did he tell you what kind of legal matter it was?

A. No.

Q. Did he ask you anything else?

A. He asked me if there was anything I could do for him.

Q. What did you tell him?

A. I told him that I could not give him legal advice; that if he wanted legal advice he should go to see a lawyer.

Q. Did he say anything else?

A. He asked me if I knew any lawyers. I told him my brother was a lawyer and that if he needed legal advice he could speak to my brother. That's as far as I can recall the conversation. It lasted only a few minutes.

Q. Did you tell Singer that he should get a lawyer who could influence the D.A.?

A. I did not.

Q. Did you tell Singer that he should get a lawyer who could fix things with the D.A.?

A. Absolutely not.

Q. Did you tell Singer that your brother could quash things with the D.A.?

A. No.

On the basis of this testimony, the grand jury indicted White on three counts of perjury for his denials in response to the last three questions. The evidence against White was the authenticated tape recording of his telephone conversation with Singer previously introduced in evidence before the grand jury.

Here, the prosecutor immunized White to give the appearance that he was investigating more serious crimes, but the prosecutor's questions largely tracked the transcript of the telephone conversation, whether the witness had said something the grand jury and prosecutor had already secretly knew he had said. There is no indication that truthful answers to these questions would have materially advanced the grand jury's investigation into the political corruption (alleged payoffs to housing inspectors).

Thus, there most certainly is a "perjury trap" in regards to perhaps "playing upon the ambiguity of language and the hazy memory of the witness as against the clarity of the prosecutor's meaning to the grand jurors and their immediate recall of the recorded conversation", but this is materially different than questioning someone in regards to a criminal investigation where the subject has a propensity to lie about matters of the investigation.

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4

Here is a good explanation by a lawyer of why Donald Trump should not volunteer to be interviewed by a federal investigator. Its actually a general principle: if you think you are under investigation by law enforcement then the last thing you should do is offer them more ammunition.

In particular, it is a crime to lie to any federal official about anything that affects their duties. This isn't technically "perjury", but its a federal felony for which you can be sent to prison for years. It doesn't need to be about anything important, and it doesn't need to mislead the official in any way (like if they already know the answer).

This has led federal investigators to trap suspects into lying to them by asking a question while implying that the honest answer (which the investigator already knows) is incriminating. The suspect panics and tells a lie, and the investigator then has them over a barrel; either the suspect cooperates or they get prosecuted for the lie and spend the next couple of years in jail. This is what happened to Martha Stewart, and its also happened to a number of people around the Trump case. Since they are all powerful, wealthy people it seems reasonable to suppose that they will have lawyers, but either they didn't ask their lawyer before talking to the investigators, or they ignored their lawyer's advice (rich powerful people tend to assume they know best).

From the suspect's point of view, the only thing that can come out of such an interview is that the investigators get more ammunition. Either they catch you in a lie (even an honest mistake can be a big problem if you can't prove it was an honest mistake) or you tell them something incriminating that they didn't already have evidence of. Nothing you say can get them off your neck unless you have clear and unambiguous evidence of your innocence (in which case you hand it to your lawyer to pass on to the investigators).

Also, quite a lot of the people who wind up being investigated by the Feds score highly on the sociopath scale. One characteristic of these people is that they feel they can talk their way out of anything, and frequently do. This habit is of course the worst thing to take into an interview with a federal investigator.

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  • This answer is more on tract, further it must be stated that the investigation is not a criminal investigation (although possible crimes may have been uncovered through the act of investigating). There are no crimes of which the President is being charged with (collusion is not a crime, but the fruits of the collusion may be). With that in mind, there is nothing to gain by allowing the interview especially politically. The opposition point, "if there is nothing to hide..." will not result in any political gain as it will not change minds. – Frank Cedeno Aug 21 '18 at 16:41
  • Martha Stuart makes an excellent example of someone who fell into a perjury trap then. From the look of it, she was charged(and convicted of) making false statements among other things, which would be linked to an interview with an investigator. – GOATNine Aug 21 '18 at 17:16
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    Martha Stewart is not a great example. While she avoided Federal insider trading charges, she settled with the SEC (which did bring such insider trading civil charges) on pretty bad terms: "In August 2006, the Securities and Exchange Commission announced that it had agreed to settle the related civil case against Stewart. Under the settlement, Stewart agreed to a five-year bar from serving as a director, or as the CEO, CFO (or other officer roles in which she would be responsible for preparing, auditing, or disclosing financial results), of any public company." (from Wikipedia). – SX welcomes ageist gossip Aug 22 '18 at 1:27
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    So saying all she did wrong was lie to the Feds is a pretty skewed presentation of the facts (More on the civil SEC suit sec.gov/news/press/2006/2006-134.htm) – SX welcomes ageist gossip Aug 22 '18 at 1:28
  • The key point is that the only prison time Martha Stewart got was for lying. All the rest was just money. – Paul Johnson Aug 22 '18 at 7:05
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I am going to go into what a political faction believes. This is not my view, nor am I advocating for it, merely stating that it exists and why it does exist.

Many younger members of the alt-right that believe in the Deep State, also believe that former acting Attorney General Sally Yates unnecessarily forced Michael Flynn to submit to questioning about his interactions with the Russian senior diplomat Sergey Kislyak. They believe that the substance of the conversation (that Kislyak was asking Flynn to get Trump to delay the UN voting on whether to back an Egyptian proposal about Palestinian land rights) was not within Yates' purview to investigate. To their credit, no charges have come up from Flynn's violation of the Logan Act.

But by asking him these allegedly unrelated questions, he was forced to either admit to a crime and risk the administration looking like they were colluding with the Russians, or lie and potentially face charges from perjury. Likewise, him mentioning that he did not recall a subsequent conversation with Kislyak was added as evidence against him when exterior facts were stacked up to suggest he did remember.

While Yates has since been vindicated (as it appears that all these individual Russian coincidences are all interrelated, and thus within her purview to investigate), this alleged Catch-22 still rancors the alt-right, and they fear another such incident should Trump be put under oath. They don't believe that Trump will lie, but that off-topic subjective banter or unrelated side-conversation during the interview will be used to charge Trump with a crime.

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C Hellings answer would be a high quality answer if The president were testifying in a criminal trial. He is not however so this answer does not apply. What will apply is lying to a federal investigator (Mueller is not a judge nor is he presiding or part of any court). Lying to a federal investigator can be proven by the word of another witness not collaborating the possible liar. When that happens, the investigator can press charges and refer the case to a grand jury.

However, this will not apply to the President. In this case, the President is above the law and cannot be charged this way. I will speculate that the evidence will instead be sent to Congress for an impeachment procedure. It will be release in a way that will lose the President any political clout and finally cause him to perhaps resign. This is based on how the Clinton impeachment was handled and the likelihood of Congress becoming more Democrat.

@Goatnine has asked if this has happened before. It certainly has. Here is the Wikipedia article about the Clinton impeachment and subsequent perjury charge. The parallels are so close:

A much-quoted statement from Clinton's grand jury testimony showed him questioning the precise use of the word "is". Contending that his statement that "there's nothing going on between us" had been truthful because he had no ongoing relationship with Lewinsky at the time he was questioned, Clinton said, "It depends upon what the meaning of the word 'is' is. If the—if he—if 'is' means is and never has been, that is not—that is one thing. If it means there is none, that was a completely true statement

I want the readers to not concentrate on the contents of the answer but in the fact that not understanding the question the investigator had asked can lead ANYONE to be charged with perjury and even the best legal minds cannot get you out of it because it is up to the investigator what is true or not.

The question of course was "Do you have a relationship with..."

The President interpreted it as currently, the investigator meant: "at any time" but the question can be interpreted either way. And there is the perjury trap.

Further, because it is a sitting president that is being question, the result of any findings is not to send probable cause or any charges to the grand-jury, but to provide evidence that most senators will see as High-Crimes. There is really no reason to do it. Clinton did it because he had a different relationship with the media and could gain political points from sympathy. This is not the case with the current President.

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  • 1
    How does this address my question? "In the United States, how can a person telling the truth under oath be 'trapped' into perjuring themselves? Has this happened before?". It looks like you have a solid idea for discourse and I would like to read more. I'm interested in getting as many objective(ish) viewpoints as possible, even if personal politics always cloud objectivity. Particularly, can you expand on the 'above the law' comment? I understand you can't indict POTUS without impeachment, but that doesn't equate to above the law necessarily. – GOATNine Aug 21 '18 at 17:06
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    There's too many things wrong in this answer for a single comment. Ignoring the entire asinine "the President is above the law" nonsense, you're trying to make a distinction between "Making false statements" (18 U.S.C. § 1001) and "Perjury" (18 U.S. Code § 1621), and you assert the difference is whether it's a criminal trial. This is false: the difference between the two is whether or not the witness is under oath, and Trump said he is willing to speak to Mueller under oath. – C. Helling Aug 21 '18 at 17:47
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    When people say "lying to the FBI is a crime" even when you're not under oath, they are referring to 18 U.S.C. § 1001, "Making false statements." You can be charged with both crimes. "Lying to a federal investigator can be proven by the word of another witness not collaborating the possible liar" -- are you referring to "proven" in the sense that this would convince a jury? Seems unlikely. The second part of your answer refers to Mueller being bound by DOJ guidelines (although you claim to "speculate" that part). – C. Helling Aug 21 '18 at 17:50
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    The cure for the trap would be as simple as Clinton having said: "The question 'do you have a relationship with...' appears vague, and seems impossible to answer unambiguously unless the question is made more specific as to the precise window of time referred to." – agc Aug 21 '18 at 19:09
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    @agc Strictly speaking, Bill Clinton never perjured himself. Clinton went to law school. He specifically asked the investigators what they defined as "sexual relations," and given their definition ("contact with the genitalia, anus, groin, breast, inner thigh or buttocks") determined oral sex fell outside that definition, and answered "no." (Of course, Starr disagreed). And regarding whether he had an ongoing relationship with Ms. Lewinsky, he answered "It depends upon what the meaning of the word 'is' is." Clinton knew the law and was careful to avoid flouting it. – C. Helling Aug 21 '18 at 20:52
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Perjury traps are real

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.” ...

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 this column to someone without having a copy of it in hand.

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)?

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.

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    While not perjury, I was unaware of the 'false statements' law, which is what he was charged with according to the DoJ (link to the DoJ official charges) – GOATNine Aug 21 '18 at 14:13
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    For this to be a credible answer it should do more than just rearrange paragraphs from an editorial written by the author of 'How Obama Embraces Islam's Sharia Agenda' and other 'unbiased' works. There are legitimate academic sources that can be used to help support the position you are arguing. However they will not dramatically exaggerate the point like McCarthy so eloquently does. – Tal Aug 21 '18 at 15:48
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    Note that the person posting this answer was suspended for a year within an hour of posting this answer. I wonder what he has done to deserve that. – Sjoerd Aug 21 '18 at 16:04
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    @Tal That's an ad hominem. You don't provide any evidence that the text quoted is wrong. – Sjoerd Aug 21 '18 at 16:08
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    "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?" Because lying about whether you discussed sanctions with Russia left the US's national Security Adviser vulnerable to blackmail by the Russians. – C. Helling Aug 21 '18 at 16:28
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In the United States, how can a person telling the truth under oath be 'trapped' into perjuring themselves?

Simple example: Ask "When did you do [insert something remotely uninteresting that happened a long time ago]?" Then press on for an exact time and date when this happened.

When one gets the time or date slightly wrong - and of course the one asking the question knew the exact date already - that's technically a lie and therefore a crime.

When asked many of those small details, everyone will slip at least once.

Has this happened before?

See the Flynn case. He is charged with lying to the FBI, even while the FBI agents questioning him think he didn't lie. See K Dog's answer for details.

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    That's actually not generally perjury - perjury requires willfully lying, not accidentally lying. The person answering would have to know that the information they were giving was false. If they believe that they're telling the truth and are just wrong, that's not perjury. It is, potentially, a false statement, which is a separate and different crime as noted in K Dog's answer. – David Rice Aug 21 '18 at 15:07
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    I did link the MWD for perjury as well as describe it as I understand it. And I asked specifically for precedent or an example from the current political climate. – GOATNine Aug 21 '18 at 15:11
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    @Sjoerd Intent is a component of the crime of perjury, and would need to be proven beyond reasonable doubt to a jury. – David Rice Aug 21 '18 at 15:13
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    @Sjoerd what does that have to do with the question? – David Rice Aug 21 '18 at 15:25
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    @Sjoerd, Re "a ruined life": This claim raises many questions. Always or just sometimes? What percent of perjury prosecutions do lead to conviction? Of those that fail, how often are those found not guilty actually ruined? And is there a difference in these figures between civilians and politicians? – agc Aug 21 '18 at 18:56

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