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Dershowitz Invents New Materiality Standard To Protect Trump Cronies -- Even Fox News Host Seems To Laugh It Off

Let's please stop with this perjury trap nonsense.

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(Photo by John Lamparski/Getty Images for Hulu)

Ever since Professor Dershowitz decided to lend his spin to whatever narrative the Trump defense team outlines in exchange for an almost daily dose of Fox News appearances, he’s made some dubious claims, but his latest effort to shore up the intellectually bankrupt “perjury trap” trope is just sad.

Appearing on Fox this morning, Dershowitz expressed his hope that the judge hearing from Michael Flynn will remember that lying to the FBI is not a crime, a revelation that was a surprise to the FBI, Mueller, Flynn, Flynn’s attorneys, the judge, the clerks, Fox News, and everyone with a copy of the U.S. Code.

In the clip below, Dershowitz begins by comparing this to the Martha Stewart case, which is astounding since Stewart actually went to jail for lying to federal investigators, thus gouging some pretty deep inroads into Dershowitz’s whole “lying to investigators doesn’t matter” argument. But his fundamental point is superficially sound — it’s only a federal crime if the lie deals with a “material fact.”

Flynn and his attorneys clearly thought what he lied about constituted a material fact when they entered their guilty plea, but Dershowitz is here to contest that conclusion with a truly remarkable argument: it can’t be material if investigators figured out it was a lie!

It all goes back to the “perjury trap” argument so many lawyers are disgracing themselves to push. It is not, in fact, a perjury trap to catch someone in a lie. It is a perjury trap to prosecute someone for wrongdoing where they would otherwise avoid prosecution — for example, a crime that is time-barred — by making them lie about it. The term addresses the injustice of functionally doing an end-run around the protections that the system affords potential defendants by punishing them for a separate crime just because law enforcement can’t touch them for the underlying offense.

But for Dershowitz, when Flynn made false statements to federal investigators, those statements could not be material because investigators knew they were false. In his mind, apparently, materiality requires investigators to rely upon the false statement.

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Spoiler alert: materiality does not require investigators to rely upon the false statement.

This is not only well-settled, but Dershowitz’s interpretation would also be a remarkably dumb standard. It cannot only be a crime to lie to investigators if investigators are too stupid or lazy to recognize the lie. The Clouseau defense is not written into the law for a reason. Instead, materiality is really defined as a statement capable of influencing investigators but that does not in any way have to actually influence them. It’s the sort of thing cases like this address: United States v. Burke, 425 F.3d 400, 409 (7th Cir. 2005) (“That the prosecutors knew (or thought they knew) the answers to the questions they asked Burke does not make the information less material.”)

Which makes this take so ludicrous that even the Fox News anchor can’t help but laugh it off. “Then why do you lie?” may be an overly simplistic, non-lawyerly take, but in this specific context, it bears a ring of truth. Flynn is a sophisticated party capable of accessing elite legal representation. He’s also a former general officer and, albeit briefly, government official with a heightened appreciation for his obligations to authorities. This isn’t some ingénue bewildered by the gravity of the situation and if it were, we should all be extra terrified of the power he once wielded. People in these circumstances don’t lie casually, they lie when they understand the seriousness of the specific lie. For example, denying contacts with Russians while knowing there’s an ongoing investigation into campaign contacts with Russians. Those kinds of lies.

Material lies.

And they also definitely don’t plead guilty when they have any reason to believe they haven’t run face first into a federal crime. Complaining about whether or not Flynn understood his rights when he agreed to meet with — and then lie to — the FBI without counsel present is fair. It would be grossly inequitable as the federal courts march ahead in a decades-long effort to undermine Miranda to say that this sophisticated government official deserves the warnings denied to so many others, but it’s an argument.

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Pretending this wasn’t a crime in the first place is just a joke. But Trump’s handlers have a narrative to get out there and Dershowitz appears all too happy to peddle it.

HeadshotJoe Patrice is a senior 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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