It is called “perjury trap” for a reason
There is a lot of media chatter about whether President Trump should agree to an interview with Special Counsel Robert Mueller and, if subpoenaed, if he should take the Fifth Amendment. In the world of politics and optics – and in the court-of-public-opinion – refusing to testify can be very damaging, to be sure.
In America, we claim that “taking the Fifth” is a basic right and should never be construed as an indication of guilt. It would be almost impossible to find a good citizen who does not see exercising the Fifth Amendment right as a confirmation – maybe even a proof – of guilt. During the campaign, Trump, himself, has brushed aside the admonition to reserve judgment in favor of the accusation of guilt when talking about members of the Clinton campaign.
So, why not just talk to Mueller. After all, the outcry from the mob on the left is that “if you are not guilty of anything, why not just go in and tell the truth?” Sounds reasonable on the surface. The answer is what every prosecutor in the nation fully understands. It is never a question of telling the truth.
Prosecutors are not interested in the truth, they are interested in indictments and convictions. It is a strong motivation because they do not get ahead professionally by losing or walking away from cases. Make no mistake, Mueller and his team want to prove indictable offenses even if they cannot actually indict a sitting president -- although they can after a president leaves office.
The problem is that IF a determined prosecutor wants to bring an indictment, they can no matter the guilt or innocence of the target party. The common phrase in the profession is that a prosecutor can “indict a hamburger.” Unfortunately, it reflects the truth. (For a more detailed explanation, you can check out my commentary The not so grand grand jury.
So, what about the so-called “perjury trap?”
It is a means for a prosecutor to entrap a target into making an inadvertent – repeat, inadvertent lie – in order to press criminal charges. While some lies may be obvious and self-serving, the prosecutors have an option of arguing that a misstatement or memory lapse is a lie. In theory – again, theory – such erroneous statements are not to be used as evidence of a determined effort to deceive, but again it is the prosecutor who makes that call.
There is simple proof that the “perjury trap” is a device to lead to an indictment rather than part of a simple inquiry. It is that the prosecutor already knows the answers to virtually all the questions. They are not looking for information, but to catch the target subject in an even technical lie.
Now imagine that prosecutors can ask questions based on their review of virtually every personal record that exists to compile a criminal case – or at least something that could be sold as a criminal case to a Grand Jury. This means that they could conceivably have your bank records, tax forms, medical records, personnel records, school records, and military records. They can have endless notes and depositions from friends, employers, family and other – many of which you did not even know had been interviewed.
An additional problem is that the prosecutors have virtually unlimited funds and personnel to search for an attempt to establish a criminal case. It is an imbalance that no private citizen could possibly match. We see this in the Special Counsel’s investigation of President Trump. Scores of people have been hired with an unlimited budget – already having spent tens of millions of dollars.
It is now widely believed that the original purpose of the investigation – to determine if President Trump or his campaign criminally conspired with the Russians -- what is widely mislabeled as collusion. As that prospect ebbed, it was hoped by the #NeverTrump resistance movement that the President could be found guilty of obstructing an investigation in which there was an underlying crime.
That may not make sense to the average common-sense fair-minded American, but it is how prosecutors put meat on an empty plate. It increasingly appears that the charge of Obstruction of Justice will prove to be the next dry hole. That leaves only two paths for prosecutors to travel – technical perjury – or some totally unrelated charges based on an unrelenting pursuit. It is because the investigation is no longer investigating a suspected crime, but in pursuit of one for political purposes.
In many ways, the Special Counsel law, as written, is a danger to the republic. U.S. district judge Amy Berman Jackson alluded to this when he told the Mueller team that they may be approaching the firewall against unfettered power – that they are abusing the judicial system to bank shot an impeachment of a President.