Perjury in US politics

Question

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.

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 4

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.

Answer 5

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.