We have heard much of perjury traps lately. They are ace attorney Rudy Giuliani’s reason for the President not talking to Mueller. He thinks perjury traps abound and are everywhere, laid by malicious prosecutors for unsuspecting innocents to walk into. They are not. As discussed below, there are two kinds of perjury traps. A virtually non-existent legal one, and a quite common practical one. Both are easily avoided.
The Legal Perjury Trap
As a legal defense, the “perjury trap” is a practically non-existent theory. How non-existent? So non-existent that “there are no federal cases granting a motion to dismiss because of a perjury trap.”
“There are no federal cases granting a motion to dismiss because of a perjury trap.”
Though many have tried the perjury trap defense, none have ever succeeded on the Federal level. That’s impressive. The reason is simple enough. It’s an “affirmative defense” meaning the defense has the burden of proving it. The defense requires proving the question asked was completely immaterial to the case. That is hard to do because courts broadly interpret what could be potentially material.
Contrary to Giuliani’s claims the kind of “perjury trap” associated with this affirmative defense has zero applicability to Mueller’s desire to interview Trump. Mueller clearly has legitimate reasons to ask Trump about possible collusion and obstruction of justice. It was what he was commanded to investigate, and Trump is at the center of it all.
Let’s take another example, that of Michael Flynn. Flynn pled guilty of making false statements to FBI agents regarding his conversations with Russians. Some, including Medium writer Mark F. McCarty, insists this was a perjury trap. McCarty argues:
“The interview of Flynn was not an effort to learn about the content and purpose of Flynn’s talks with Russian Ambassador Kislyak. The FBI already had tapes of those talks. The purpose of the FBI interview was the entrapment of Flynn, and in this respect it succeeded admirably.”
In essence McCarty argues it was a perjury trap on grounds the FBI did not legitimately ask the questions to find out the answers because the FBI already knew the answers. However, that is not legally a perjury trap. The FBI was investigating the conversations Flynn had, so it was perfectly reasonable and permissible of the FBI to ask Flynn about them.
In fact, many have raised the perjury trap defense in cases like Flynn, arguing that the question was illegitimate because the investigators already knew the answer. Many such cases, like Flynn’s, involve where investigators already knew because of wiretaps. As mentioned above, absolutely every assertion of this kind of argument, as a basis to dismiss a perjury case, has been rejected by the Federal courts. This is true even when investigators asked about conduct that, while illegal, was not prosecutable because the Statute of Limitations had passed.
Notably, Flynn made his dishonest answers, and he confessed to their dishonesty, during a voluntary interview. He did not even have to talk to the FBI, and he could have ended the interview anytime he wanted. Even presuming a “trap,” Flynn walked right into it on his own volition.
The Practical Perjury Trap.
There is a very real “perjury trap” that defendants commonly face, and that is the kind of trap Flynn actually found himself in. In such cases the defendant is guilty (or at least thinks he is). When questioned the defendant faces a dilemma, a “trap” if you will.
To answer truthfully is to confess to a crime. To lie is to commit the new crime of perjury.
The practical perjury trap is the dilemma of the guilty man who knows that to tell the truth is to confess, but to lie is to commit perjury.
A flippant response, frequently given, is that perjury traps can be avoided by telling the truth. The problems with that are obvious. However, there is a third choice. When faced with the questions he later admitted to lying about, Flynn had not two choices, but three. These are the same choices Trump would have, or any other person facing either kind of perjury trap.
- Tell the truth (confess).
- Lie (commit perjury).
- Don’t answer (assert your 5th Amendment rights).
In all this nonsense about perjury traps that third option just gets totally ignored. Any defendant, or potential defendant, always has this option. I know some have said if you start to answer police questions, you have waived your rights. That is not true. Outside of a defendant deciding to testify in court, you can always stop a police interview, or even grand jury testimony, at anytime.
One can flawlessly dodge any perjury trap by keeping one’s mouth shut.