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Can a prosecutor invite a witness to testify, or even compel him to testify through subpoena, hoping to elicit a lie so the witness can be charged with perjury? The short answer is yes – and it doesn’t matter that the witness is the President or his progeny.
As the Mueller investigation occupies so much of the nation’s attention, and the subjects and putative targets of the investigation speak or tweet publicly about the legal bases for the investigation, it makes sense to clarify what a “perjury trap” actually is.
First, let’s understand what a “perjury” is before understanding how someone can arguably be “trapped” into committing such an offense. A “perjury,” as recognized in the federal law and most state statutes, is usually an (1) intentional, (2) false statement, (3) under oath, (4) about a matter material to the subject of the inquiry. All four elements are necessary to complete the crime, so not all false statements are necessarily a perjury. A tweet is not under oath and, therefore, not a perjury. Unintentionally misstating a detail about something is not a perjury. And lying about something immaterial to an investigation, let’s say your age, may not be a perjury unless your age is material to the investigation.
Also, merely because something isn’t a “perjury” doesn’t mean it’s not an obstruction of justice. Obstruction of justice doesn’t require the formality of a perjury as it doesn’t have to be under oath or even about a pending investigation. An obstruction doesn’t even have to be a statement but can be conduct intended to prevent inquiry into something potentially illicit. Think cover-up.
Over the last few decades, defense lawyers have complained to courts – usually unsuccessfully – that prosecutors are setting “perjury traps” for their clients when the prosecutor compels a witness to appear in a court or a grand jury proceeding believing that the witness may lie under oath. Courts are consistently unsympathetic to claims of a “perjury trap,” which is why the defense remains a bit of a unicorn in the pantheon of defenses available to defendants.
Courts, however, have opined on what qualifies as a perjury trap. It is ostensibly created when the government calls a witness before the grand jury for the principal purpose of obtaining testimony in order to prosecute him later for perjury. But for a perjury trap to exist, the government must be using its subpoena power to secure the perjury indictment “on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury.” United States v. Chen, 933 F.2d 793, 796 (9th Cir.1991).
Even when it is clear the prosecutor believes it is likely the witness will give testimony inconsistent with the facts, courts have still not found an actionable violation because, as South Florida jurist and former Chief Judge James Lawrence King observed when considering whether state prosecutors were trying to gin up a perjury and contempt, “although the government might have anticipated the witness would lie, the government surely also recognized that the witness might testify truthfully.” Gersten v. Rundle, 833 F. Supp. 906 (S.D. Fla. 1993).
All that matters is whether the investigation itself is legitimate. If it is a valid inquiry, a material lie will suffice to form the basis for an indictment. As Justice White once famously explained, “the public has a right to every man’s evidence.” It is not, therefore, a defense to a lie that the prosecutor was hoping for one.
Rudy Giuliani’s recent protests that he believes his client or his client’s children could fall into a perjury trap may reflect an understandable concern that they might say something contrary to the truth. But the law does not offer them any protection from such a fate if they choose to or are compelled to testify. If Mueller’s investigation is legitimate – which it is, as proven by the mandate he was given and the number of guilty pleas and convictions he has already secured – a material lie under oath is a felony. There simply is no defense under the so-called perjury trap doctrine.
As a federal corruption prosecutor, Dan was responsible for numerous high-profile obstruction and perjury prosecutions, and as the Chief Counsel of the US Senate’s investigations committee, he regularly addressed issues regarding witness veracity. Dan’s practice at Gelber Schachter & Greenberg, P.A. now focuses on white collar criminal defense and internal investigations.