Government

It's Not A 'Perjury Trap' Just Because You Plan To Commit Perjury

Trump's supporters are calling Mueller's request for an interview a "trap." They're wrong.

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A favorite tactic of the dumb criminal is to proclaim everything law enforcement did to bring the criminal to their ruin as “entrapment.” “Your Honor,” they will say, “it was entrapment when that undercover cop nabbed me for offering her $100 for a blowie!” No, it wasn’t. And yet the road to prison is paved with claims of entrapment. It truly is the last legal refuge of the scoundrel.

And for the next few days, it will get its turn as “dumb thing conservatives say in defense of Donald Trump.”

Everyone knows that Special Counsel Robert Mueller — a Republican — wants to interview Donald Trump in connection with his investigation into the Trump campaign’s dealings with Russian officials during the 2016 election and, by extension, possible claims that Trump obstructed justice in an attempt to quash the inquiry. Ty Cobb was, by all accounts, enthusiastic about making that happen. That’s why he’s gone back to his day job of “being Wilford Brimley.” Rudy Giuliani says the current Team Trump strategy is to offer Mueller written responses to questions — the sort of answers that can be massaged by attorneys and allow for absolutely no follow-up.

Mueller declined the invitation.

What does this mean? Professor Glenn Reynolds took a break from advocating manslaughter to opine:

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No, it’s not. Sadly, Reynolds isn’t alone in invoking the “trap” language. I guess they realized the “Mueller has exceeded his mandate” trope wasn’t catching fire so they’ve moved on to this. But it’s dumb and should be rejected out of hand.

Putting aside the specifics of this case, this argument is facially ridiculous. By this logic every prosecutor who demands oral testimony is engaged in entrapment? Let’s get serious, please.

For the most part, Mueller wants oral testimony for the same reasons everyone else does — it allows for a better evaluation of the veracity of a witness’ claims and it allows the examining attorney to follow-up in real-time when the other lawyer’s pre-packaged bull doesn’t pass muster. Even if Mueller suspects Trump will commit perjury under these conditions, it’s not a perjury trap anymore than the prostitution sting outlined above is entrapment.

A “perjury trap” describes the phenomenon of a less-than-scrupulous prosecutor eliciting testimony for the sole purpose of securing a perjury conviction. In the classic example, United States v. Chen,[1] an official was asked questions about violations that were barred by the statute of limitations and then tagged with perjury. And even then, the appellate court upheld his conviction on the grounds that his testimony was relevant to the investigation of the agency he worked for as a whole.

If Mueller’s investigation were limited to Paul Manafort’s work on the Skadden’s report on Ukrainian politics, then maybe bringing in Trump to ask what he remembers might be a perjury trap. But Mueller is looking into a wide array of contacts during the campaign by high ranking campaign officials, advisors, and Trump’s kids. And then there’s the whole “obstruction” thing relating to the Comey firing. Mueller isn’t bringing Trump in to create a perjury charge. Much like the prosecutors in Chen he’s bringing in Trump to testify about suspected crimes, some of which personally involve Trump.

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Stop calling this a perjury trap. It’s not. It may be an interview fraught with the risk of committing perjury, but that doesn’t make it improper in the slightest.

And if Trump wants to avoid getting entangled in perjury, there’s always the simpler solution of not lying.

Earlier: Ty Cobb Out, Emmet Flood In, Constitutional Crisis Looms
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[1] This and other key cases in this area are neatly gathered in a Note on the subject. See McLain, Billy Joe, Debunking the Perjury-Trap Myth, 88 Tex. L. Rev. 883 (2010).

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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