What Is A Perjury Trap and Does It Apply To The Special Counsel's Investigation?

Aug 10, 2018
Originally published on August 10, 2018 6:23 pm
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AILSA CHANG, HOST:

And while the trial of Paul Manafort has been underway the last couple weeks, so have continued negotiations between President Trump's legal team and special counsel Robert Mueller. They're trying to agree on conditions under which President Trump would sit for an interview for Mueller's Russia investigation. Negotiations reached a new level of intensity this week when the president's lawyer, Rudy Giuliani, said the president's legal team had made its last and best offer. One of the concerns they have is what they describe as a perjury trap. Here's what Giuliani told Sean Hannity on Fox News Wednesday night.

(SOUNDBITE OF TV SHOW, "HANNITY")

RUDY GIULIANI: Why do you want to get him under oath? You think we're fools? You want to get him under oath 'cause you want to trap him into perjury.

CHANG: With us now to discuss what exactly a perjury trap is and whether it applies here is former federal prosecutor Randall Eliason. He's now at George Washington University Law School. Welcome.

RANDALL ELIASON: Thank you.

CHANG: OK. First, just start us off by defining - what is a perjury trap?

ELIASON: So a perjury trap is a specific legal defense. It's actually related to entrapment, and it's actually an accusation of prosecutorial misconduct. So what it means is that the prosecutor calls you in to testify not because they've got some legitimate investigative reason to have you testify but simply to try to sort of trick you or trap you into some kind of a lie that they could then charge you with.

CHANG: So if an important aspect of a perjury trap argument is the intent of the prosecutor, does perjury trap apply in Trump's situation?

ELIASON: No, it doesn't apply here at all. There's no suggestion that Mueller doesn't have a legitimate reason for wanting to talk to the president. The president is at the center of everything that he's investigating, and he hasn't testified or given an interview yet at all. So Mueller has a perfectly legitimate reason for asking the president to testify. And simply the fact that you're asked to testify doesn't make it a perjury trap. If that were true, then every witness who is called testify about anything could claim they were being set up with a perjury trap.

Saying this is a perjury trap is like saying driving a car is a speeding trap. I mean, you get behind the wheel, it gives you the opportunity to speed and break the law, but you still have to choose to do that. And all you have to do to stay out of trouble is abide by the law. And the same thing is true here. Being called to testify gives you the opportunity to commit perjury, but you still have to choose to lie.

CHANG: So if you think perjury trap clearly does not apply in Trump's case here, why do you think his legal team has been so persistently making this point?

ELIASON: Well, I think it's clear. I think it's definitely a part of the ongoing pattern by the president and his legal team to attack the Mueller investigation and try to delegitimize it, you know, calling it a witch hunt, suggesting that it's unfair. This is just - this is of a piece with that entire argument.

So by suggesting it's a perjury trap, it's somehow unfair to ask the president to testify, they're setting themselves up to make the argument down the road, A, if he refuses to do the interview, which is starting to look more likely, they'll try to justify it by saying, well, we couldn't agree to that interview. It was a perjury trap. Or if he does an interview or ends up testifying in the grand jury and ends up being accused of perjury, then they'll suggest the charge is illegitimate or the whole investigation was unfair because it was a perjury trap. So it's all part of this defense tactic that's been on display for months now to try to undermine the Mueller investigation.

CHANG: If you were Trump's lawyer, would you think Trump doing an interview with Robert Mueller is a good idea?

ELIASON: I think you'd have a hard time finding a criminal defense attorney who would recommend that the president sit for this interview as a legal matter. Now, of course, he's not just any client, right? He's the president, and there are some special considerations involved. I mean, certainly, I would think the president of the United States should always cooperate with law enforcement and agree to be interviewed in a case like this. But strictly as a criminal matter, if he's your client, I think it's - there's a lot of downside risk for the president in an interview like this and that most lawyers would probably recommend that he not do it.

CHANG: Randall Eliason is a former federal prosecutor who now teaches at the George Washington University's School of Law. Thank you very much.

ELIASON: My pleasure, thanks. Transcript provided by NPR, Copyright NPR.