Early this year, it was very subtle. White House lawyer Ty Cobb for the first time gently suggested the possibility of President Trump being lured into a “perjury trap” if he interviewed with Robert S. Mueller III’s Russia investigation. At the same time, though, Cobb was quick to emphasize that he didn’t think Mueller, a man he respected, would ever do such a thing.
Times have changed.
Appearing on Sean Hannity’s Fox News show Wednesday night, Trump lawyer Rudolph W. Giuliani addressed Mueller directly and explicitly accused him of laying a perjury trap for Trump — twice.
“Hey, Bob, you know it,” Giuliani said. “Why do you want to get him under oath? Do you think we’re fools? You want to get him under oath because you want to trap him into perjury.”
He added shortly thereafter: “Stop the nonsense. You are trying to trap him into perjury, because you don’t have a case.”
The subject of a perjury trap also came up repeatedly during fellow Trump attorney Jay Sekulow’s appearance on another prime time Fox News program, and he and Giuliani discussed it on Sekulow’s radio show earlier in the day. In other words, this seems to be Talking Point No. 1 — the way in which Trump’s lawyers, who obviously, badly don’t want their client to talk to Mueller, are trying to make sure he won’t do it now that negotiations have ground down. It also doubles as a way of explaining any false statements Trump might actually make, if and when the interview actually takes place.
And Trump-friendly media have obliged that line of argument, with pundits arguing that perjury traps are very real and perhaps even foolproof.
There are many reasons to be dubious about this argument. The first is that there is no real reason to believe Mueller is actually engaging in such conduct. He wants to ask Trump questions about obstruction of justice, and Trump’s lawyers want that off the table. There is a difference of opinion about what Trump should be require to account for.
But there is also clearly evidence to support such questions, whether Trump’s conduct actually rose to the level of illegality. The firing of James B. Comey, allegedly asking for leniency for Michael Flynn, etc. It’s one thing to argue Trump has already dealt with these questions via his public comments; it’s quite the leap to suggest that merely broaching them definitively shows Mueller’s corrupt intent.
As former federal prosecutor Randall Eliason wrote in The Post earlier this year:
“[P]erjury trap” is a specific legal defense, related to entrapment. A claim of a perjury trap is really a claim of prosecutorial misconduct. It refers to an abuse of the legal process, whereby a prosecutor subpoenas a witness to testify not for a legitimate investigative purpose but to try to catch him in an inconsistency or falsehood — even a relatively minor one — that can then trigger a perjury charge.
No objective observer could claim Mueller does not have a legitimate investigative reason to interview Trump. Trump was, of course, the head of his campaign and is therefore a key witness on all issues related to possible Russian interference and collaboration. And if Mueller is probing possible obstruction of justice by the president himself, it is critical to try to get the president’s side of the story. It’s entirely appropriate and expected for Mueller to seek the president’s testimony.
But the biggest problem here is that there is an easy solution: Just tell the truth — at all times.
What this really shows is how deathly afraid Trump’s lawyers are that he can’t do that during such an interview. Trump’s more than 4,000 falsehoods and misleading statements as president have been well-documented. And he’s already shown that he struggles to square his hyperbolic and untrue statements while being deposed.
The best explanation, from Trump’s legal team’s perspective, is that he’s a serial liar — which would at least suggest he rein himself in when it matters. The even-more-troubling one is that he doesn’t actually understand how to make sure he’s being truthful — that he has no grasp of basic facts and fails to recall things correctly. (It’s the “Stupid or Liar” dichotomy I’ve written about many times.) Both would be problematic in an interview setting, but at least the first would be correctable.
Which means their fears are well-founded. Bill Clinton, after all, was impeached for perjury even without such a lengthy trail of public deceptions. And several figures in the Russia investigation have already pleaded guilty to making false statements. It’s a very real risk for anyone, especially someone trying to account for questionable behavior who may want to massage the truth.
But it’s not clear that any of them were actually “trapped” into making such false statements. Instead, they seem to have trapped themselves with their own, suspicious behavior. Which is really the “perjury trap” that Trump’s lawyers are worried about.
What may be most notable here is that Trump’s lawyers are actively (if preemptively) now accusing Mueller of prosecutorial misconduct, which suggests we’ve crossed the Rubicon in this whole thing. It’ll get uglier before it gets prettier.