A showdown has been looming between Robert Mueller and Donald Trump. There is zero doubt that Mueller is out to get Trump and Trump is wise to steer clear of an interview with Mueller. Trump has come under criticism from the left for not choosing to expose himself to legal jeopardy in the form of a perjury trap.
Perjury trap doctrine refers to a principle that a perjury indictment against a person must be dismissed if the prosecution secures it by calling that person as a grand-jury witness in an effort to obtain evidence for a perjury charge especially when the person’s testimony does not relate to issues material to the ongoing grand-jury investigation. The perjury trap is a form of entrapment defense, and so must be affirmatively proven by the defendant.
The following are examples of some case law on perjury trap:
A perjury trap is created when the government calls a witness before the grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury. When testimony is elicited before a grand jury that is attempting to obtain useful information in furtherance of its investigation, or conducting a legitimate investigation into crimes which had in fact taken place within its jurisdiction, the perjury trap doctrine is, by definition, inapplicable. [United States v. Chen, 933 F.2d 793 (9th Cir. Guam 1991)]
When Giuliani said “truth isn’t truth” he was quite right. Gen. Michael Flynn told the truth and was exonerated by two FBI agents who did not thing he lied. The newt thing you know he’s indicted by Mueller and as forced to accept a plea deal because 1. he was being bankrupted and 2. Mueller was threatening his family. So when the left was arguing that there is no such thing as a perjury trap, you know damn well there is.
Successful perjury traps do not get prosecuted all that often. But that does not mean perjury traps are uncommon. They tend to be used more for leverage than to prosecute as a stand-alone charge. A prosecutor who knows a reluctant witness will lie elicits the lie and then exploits the resulting specter of prosecution — along with other leverage points — to pressure the witness into spilling the beans. Or, in a jury trial, the prosecutor who suspects a defense witness will lie, sets the trap, elicits the lie, and then blows it up — not to lay the groundwork for a future perjury charge but to destroy the witness’s credibility, which helps win the trial.
In any event, it is fatuous to claim that this stuff doesn’t happen. It happens all the time. If you want to say that President Trump’s lawyers are just making excuses for a client who is prone to lie without being trapped, that is a cogent legal argument. If you instead insist that there is no such thing as a perjury trap just because the concept is being invoked by lawyers for a president you despise, then you’re playing politics . . . or you’ve let your contempt for Donald Trump get the better of you.
If you watched any of the democrats questioning Brett Kavanaugh during the confirmation hearings this week, you saw a perjury trap in action. Led by wannabe Presidential candidates Kamala Harris and Cory “Spartacus” Booker, democrats did their best to ask questions in a leading, obtuse and abstract manner to so as to be able to pounce upon the answers later and level accusations of perjury against Kavanaugh- who by any measure is a decent, honest and honorable man.
For those keeping score at home, millions of Americans have now been exposed to false and ridiculous claims that Kavanaugh is a slippery perjurer who surrounds himself with racists and a cold, dark soul who deliberately snubbed a murdered child’s father.
Then there are the perjury claims. Writing in the widely read online journal, Above the Law, writer Elie Mystal charged that Kavanaugh committed perjury when, during the 2004 hearing from which he was confirmed to the D.C. Circuit court of appeals, he told Ted Kennedy “that he was ‘not involved’ in Bill Pryor’s nomination to the Eleventh Circuit. In fact, Mystal said, “He was involved. In documents made public during Senator Pat Leahy’s questioning, Kavanaugh is shown to have recommended Pryor, and invited to actively discuss Pyror’s hearings.” As proof of the alleged lie, Mystal embedded this tweet:
On the left, sworn testimony in which Brett Kavanaugh tells Ted Kennedy he was "not involved in handling" Bill Pryor's nomination.
On the right, Brett Kavanaugh is invited to an "emergency umbrella meeting" at a private law firm "to discuss nominee Bill Pryor's hearing." pic.twitter.com/IDff00xEwm
— southpaw (@nycsouthpaw) September 6, 2018
This was torn apart by David Lat
8. Kavanaugh explicitly ADMITTED, for example, that he might have attended a moot session for Pryor, and/or read & discussed news articles about the Pryor nom (but understandably didn't want to go into detail about @WhiteHouse internal deliberations). pic.twitter.com/K9nOo4uf2X
— David Lat (@DavidLat) September 6, 2018
Back to David French:
So, in context, the meaning is plain: The Pryor nomination wasn’t his to handle, but he did assist in some ways. It’s right there, in black and white.
And then this
Writing in Slate, Lisa Graves also claimed that Kavanaugh should be “impeached, not elevated” for supposedly perjuring himself. She argued that the judge deliberately lied when he testified he did not see any information stolen from Democrats by former GOP Senate aide Manuel Miranda in the early 2000s. Here’s the relevant portion of Kavanaugh’s testimony:
“I don’t know what the universe of memos might be, but I do know that I never received any memos, was not aware of any such memos.”
Graves claimed that Kavanaugh actually did receive information she believes “plainly” came from stolen Democratic talking points. Perjury, right? Not so fast. Even a panel of experts convened by Vox threw cold water on Graves’s legal theory. There is a long distance between an inaccurate statement and the kind of willful, deliberate falsehood that constitutes a federal crime. Brooklyn law professor Miriam Baer said that “she didn’t see any lie” in Kavanaugh’s response. He simply testified that he didn’t realize the material was stolen.
Bill Jacobson has a great analysis of this too.
Clearly, the questions were designed to by ambiguous and tortured. Not satisfied with that, democrats took to deceptively editing Kavanaugh’s comments to further disparage him:
The discussion of contraceptives arose when GOP Sen. Ted Cruz of Texas asked Kavanaugh about a dissent he wrote in a case called Priests for Life v. U.S. Department of Health and Human Services, a First Amendment challenge to the Affordable Care Act’s contraception mandate. Though Obamacare includes an opt-out provision for religious groups with moral objections to birth control, the plaintiffs in Priests for Life argued the fix was inadequate and still burdened their religious beliefs.
“It was a technical matter of filing out a form in that case,” Kavanaugh told Cruz. “But they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were, as a religious matter, objected to.”
Democratic Sen. Kamala Harris of California tweeted a selectively edited video of the judge’s remarks, which exclude the words “they said” from his statement, creating the impression that the phrase “abortion-inducing drugs” reflected Kavanaugh’s own considered opinion, and not those of the Catholic priests challenging the contraception mandate.
These are acts of desperation and they will go exactly nowhere, but then they are meant to discredit a good man and provide campaign fodder for Presidential ambitions. They are disgraceful.
Now imagine that instead of Kamala Harris and Spatacus Booker, imagine Robert Mueller asking similar obtuse and ambiguous questions. It wouldn’t matter how honest the answer if the prosecutor wants your ass.
You become the ham sandwich.