August 23, 2018

The Trap of Giuliani’s “Perjury Trap” Argument


Photo by Albert H. Teich, Shutterstock.com


Trump’s television lawyer has long said that the special counsel is trying to catch the president in a lie if he sits for an interview. That’s false.


By Daniel S. Goldman, J.D. / 08.21.2018
Fellow
Brennan Center for Justice


For months now, President Donald Trump’s television lawyer Rudy Giuliani, a former U.S. Attorney for the Southern District of New York, has cited a number of reasons to explain why he’s reluctant to have his client sit for an interview with Special Counsel Robert Mueller. But none of those reasons adequately defends such a decision, particularly the notion that a voluntary interview is somehow a “perjury trap.”

As far as back as May, Giuliani was warning about Mueller’s intentions in questioning the president. “What they’re really trying to do is trap him into perjury, and we’re not suckers,” Giuliani told Fox News. The President himself raised the same concern about a “perjury trap” again Monday. And Sunday the former New York mayor told Meet the Press, “I am not going to be rushed into having him testify so that he gets trapped into perjury. And when you tell me that, you know, he should testify because he’s going to tell the truth and he shouldn’t worry, well that’s so silly because it’s somebody’s version of the truth. Not the truth.” Shortly after this statement the former federal prosecutor told host Chuck Todd, “Truth isn’t truth.”

Philosophers have debated the nature of truth for millennia, but “perjury trap” is a precise legal term — and one that Giuliani is cavalierly tossing around in an effort to undermine the credibility of Mueller’s probe.

A “perjury trap” occurs in cases of prosecutorial misconduct, whereby a prosecutor issues a grand jury subpoena to someone not relevant to the investigation for the sole purpose of catching that witness in a lie. The inquiry examines whether the prosecutor acted properly in issuing the subpoena, regardless of whether the witness testifies truthfully.

Needless to say, Mueller’s request to interview Trump does not amount to anything close to a “perjury trap.” Any federal prosecutor would conclude not only that Mueller’s investigation is legitimate — notwithstanding Trump’s cries of a “rigged witch hunt” — but that the president is a relevant witness in both the investigation into Russia’s interference in the 2016 election and the investigation into obstructing the Russia probe.

Given Trump’s personal knowledge about the subject of both investigations, nothing about Mueller’s request to interview Trump amounts to anything close to a “perjury trap” in any sense of the term. Giuliani doubtless knows this, but he and his client believe the media war is more important than the legal one.

Even if one were to put the best gloss on the “perjury trap” argument, Giuliani seems to be trying to make a fairly common point made by criminal defense lawyers: In deciding whether to charge an individual with perjury or false statements, the prosecution and investigators are the initial arbiters of the truth. This argument is frequently made in the context of cooperating witnesses, who are required by their plea agreements with prosecutors — not the court — to tell the truth, which, the argument goes, means that the prosecutors determine whether the cooperating witness is telling the truth, not the judge or jury.

The fatal problem with this argument is that prosecutors never base charges solely on the word of one witness — that is simply not how federal prosecutions work, even if the testimony is corroborated by contemporaneous notes of the witness (as in the case of Trump’s firing of Comey). Rather, prosecutors would only charge a perjury or false statements case — much less one against the President of the United States — if it is corroborated by documents, other witnesses, or, more likely, both. Giuliani’s assertion, therefore, is based on a false and misleading premise that misrepresents how the investigation and charging process works.

Even if Giuliani may not recognize it, to prosecutors investigating criminal conduct and to a jury’s determination of guilt or innocence, the truth is the truth. His effort to mislead the public further underscores the importance of Trump submitting to a voluntary interview with the special counsel, as is required by every single other federal official. Trump must be subject to the rigor of answering questions, under the penalty of prosecution for lying, to ensure his best recollection is documented by the special counsel. If Trump wishes to assert his Fifth Amendment right not to testify, he may do so and endure the resulting political consequences. If Trump chooses not to do either, the only conclusion we should draw is that he has something to hide. No other explanation makes sense.


Originally published by the Brennan Center for Justice under a Creative Commons Attribution-No Derivs-NonCommercial license.

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