Thursday, May 03, 2018

Setting a Perjury Trap for Trump


by Gaius Publius

A "perjury trap" is a prosecutorial maneuver and a form of entrapment in which "a prosecutor calls a witness to testify with the intent to base a perjury charge on their statements, not to indict them for a previous crime." If a prosecutor calls a witness for only that purpose, rather than to get information to further an investigation, the law is clear — it's forbidden.

Perjury traps are most easily executed when the prosecutor has prior knowledge of the matter about which the witness is questioned but doesn't reveal having that knowledge. In practice perjury traps can be executed while furthering an investigation and still be traps. A prosecutor can ask investigatory questions and set a perjury trap at the same time. Thus, since perjury traps are forbidden in law only in restricted circumstances, they are difficult to avoid.

If the questions leaked to the New York Times and presented as what Robert Mueller would ask Donald Trump in an official interview, are indeed Mueller's questions (regardless of who leaked them), Mueller may be setting a perjury trap for Trump.

Michael Flynn's Perjury Trap

Witness the situation of Michael Flynn, about which investigative reporter Robert Parry wrote just weeks before his death:
Russia-gate enthusiasts are thrilled over the guilty plea of President Trump’s former National Security Adviser Michael Flynn for lying to the FBI about pre-inauguration conversations with the Russian ambassador, but the case should alarm true civil libertarians.

What is arguably most disturbing about this case is that then-National Security Adviser Flynn was pushed into a perjury trap by Obama administration holdovers at the Justice Department who concocted an unorthodox legal rationale for subjecting Flynn to an FBI interrogation four days after he took office, testing Flynn’s recollection of the conversations while the FBI agents had transcripts of the calls intercepted by the National Security Agency.

In other words, the Justice Department wasn’t seeking information about what Flynn said to Russian Ambassador Sergey Kislyak – the intelligence agencies already had that information. Instead, Flynn was being quizzed on his precise recollection of the conversations and nailed for lying when his recollections deviated from the transcripts.
Seems like entrapment to me, regardless of what you think of Michael Flynn.

Bill Clinton's Perjury Trap

If you're not fond of Michael Flynn, consider Bill Clinton, of whom many have kinder thoughts. In 1998 Jeffrey Rosen wrote this in The New Yorker about Ken Starr's attempt to prove Bill Clinton perjured himself by denying his affair with Monica Lewinsky (emphasis added):
Independent Counsel Kenneth Starr has claimed that his 7-month investigation of President Clinton's relationship with Monica Lewinsky, which seeks to prove that Clinton and Lewinsky lied under oath in the Paula Jones sexual harrassment case against Clinton, is about lies, not sex. But the public appears to recognize instinctively what the law has long acknowledged: that lies vary in degree and in kind, and that they should be treated accordingly. The President's aides fear that Starr will try to set a so-called perjury trap in order to catch the President in lies told directly to the grand jury. Perjury traps have become a popular tactic among independent counsels: if they can't prove the alleged crime they were appointed to investigate, they indict suspects for lying to investigators. But the traps are effective only because independent counsels have succeeded over the past few decades in expanding the lying laws far beyond their historical roots.
The U.S. is a prosecutorial nation, and has been for some time. How else do we explain the popularity of shows like Judge Judy, Jerry Springer and the many like them, shows in which the "unworthy" are subjected to public humiliation? How else do we explain our acceptance of having the largest prison population in the world?

How Will the Next "Rogue" President Be Taken Down?

Perhaps you're fine with this use of prosecutorial power. Perhaps, even though you'd hate it if these tactics were used against you, and hated it when they were used against Bill Clinton, you now love them when used against Trump and his team.

But whatever your view of either man, Donald Trump or Bill Clinton, keep this in mind:

     1. This is the way prosecutors regularly do business in our "in love with prosecution" state. 

     2. This is one way Mueller is trying to get rid of Donald Trump — this and the blackmail opportunity his investigation of Trump's finances will inevitably offer.

And thanks to Democrats, who opposed these tactics when used against Clinton's presidency, and now cheer their use against Trump's, we see that:

     3. These techniques have now been "blessed" (legitimized) by both parties and the mainstream press, and

     4. They can and will be used freely against any sitting president who falls seriously out of favor with our ruling Establishment.

Do you think a President Sanders would be any more loved, or any less hated, by the DC and press Establishment than Donald Trump is? Imagine a Sanders-like presidency. Remember MSNBC's behavior to Sanders during the 2016 primary. Remember the Party's behavior during that time. What do you think would be done to "delegitimize" him, or anyone like him, by both parties and the press, with both parties' consent?

What if he adopted a federal jobs guarantee proposal? Such a program, properly executed, would force wages to rise through the entire private sector and affect the bottom line of every corporation with employees in the U.S. What if he starts such a program under current executive power? Now imagine that the program has huge popular support, which means it represents a real legislative threat to our decades-old, comfortable, bipartisan neoliberal Establishment.

Would such a program be allowed by that Establishment to go forward? What if it could not be stopped in any other way than by bringing down ("delegitimizing") the Sanders presidency itself?

Anyone who attempts to overturn four decades of Establishment neoliberal rule would not be treated kindly by anyone in DC. The bipartisan takedown of a President Sanders would look different than the takedown of Trump, but all of the same actors would participate and all the same tools would be in play.

Please, as you cheer the takedown of President Trump (if you do), keep a president like Sanders in mind.

The NSA Already Knows the Answers to Mueller's Collusion Questions

Back to Mueller's questions for Donald Trump. The dirty little secret — which is only "secret" because everyone in the country is pretending it isn't so — is that the NSA already knows all or most of what Mueller reportedly wants to find out in his questions for Donald Trump.

Ex-intelligence officers Ray McGovern and William Binney wrote about this at Robert Parry's Consortium News (h/t email correspondent Kevin Fathi for the link; emphasis added):
Mueller does not need to send his team off on a “broad quest” with “open-ended” queries on an “exhaustive array of subjects.” If there were any tangible evidence of Trump campaign-Russia collusion, Mueller would almost certainly have known where to look and, in today’s world of blanket surveillance, would have found it by now. It beggars belief that he would have failed, in the course of his year-old investigation, to use all the levers at his disposal — the levers Edward Snowden called “turnkey tyranny” — to “get the goods” on Trump.

Here’s what the “mainstream” media keeps from most Americans: The National Security Agency (NSA) collects everything: all email, telephone calls, texts, faxes — everything, and stores it in giant databases. OK; we know that boggles the mind, but the technical capability is available, and the policy is to “collect it all.” All is collected and stored in vast warehouses.  (The tools to properly analyze/evaluate this flood of information do not match the miraculous state of the art of collection, so the haystack keeps growing and the needles get harder and harder to find.  But that is another story.)

How did collection go on steroids? You’ve heard it a thousand times — “After 9/11 everything changed.”  In short, when Vice President Dick Cheney told NSA Director and Air Force Gen. Michael Hayden to disregard the Fourth Amendment, Hayden saluted sharply. [James Comey, hero of the #Resistance, saluted sharply too, except for that one little time when he asked for changed first.]

And so, after 9/11, NSA’s erstwhile super-strict First Commandment, “Thou Shalt Not Collect Information on Americans Without a Court Warrant,” went the way of the Fourth Amendment. (When this became public, former NSA Director Adm. Bobby Ray Inman stated openly that Hayden violated the law, and former NSA Director Army Gen. William Odom said Hayden ought to be courtmartialed.  The timorous “mainstream” media suppressed what Inman and Odom said.)
And yes, the NSA does indeed spy on everyone, with the help and connivance of Barack Obama:
On January 17, 2014, when President Barack Obama directed the intelligence community to limit their warrantless data searches for analysis/evaluation to two “hops,” either he did not understand what he was authorizing or he was bowing, as was his custom, to what the intelligence community claimed was needed (lest anyone call him soft on terrorism).

Intelligence directors were quite happy with his decision because, basically, it authorized them to spy on anyone on the planet.
"Collect it all," NSA chief Keith Alexander famously said. And if whistle-blower Russell Tice is to be believed, the NSA's been doing just that since 2001, including getting wiretaps of Barack Obama in 2004, just as he was emerging onto the national political scene. Tice once claimed in an interview to have held those orders in his hand. He also claimed that similar orders applied to all important judges, including FISA judges, and all Pentagon officers of three-star rank and above. (For conspiracy fans, note that this would have included General Patraeus.)

Setting a Perjury Trap for Trump

To end where we began, here's what I think we're about to see next in the Mueller-Trump story. Mueller is attempting to bait Trump into giving an interview. Trump's former lawyer John Dowd quit recently, reportedly over Trump's interest in granting Mueller an interview, which Dowd strongly (and wisely) opposed. Trump recently hired Rudy Guilani, reportedly to negotiate a Trump-Mueller interview with clear boundaries and with it an end to the investigation.

It looks like Trump favors doing the interview. So what will happen if Trump sits down with Mueller? Will he stay on the script his lawyers prepared for him, or will he freelance?

If he freelances, will he lie?

It's impossible to imagine an undisciplined Trump not freelancing and not lying. If he lies, he will be charged with perjury and Mueller will have succeeded.

Whether that brings him down, however, is anyone's guess. (Mine is, it won't.) After all, the House would still have to impeach him, and even Nancy Pelosi has said impeachment is off the table (again).

Maybe it's all just one club after all.


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At 9:29 AM, Anonymous Anonymous said...

"Maybe it's all just one club after all."

And YOU Ain't In It!

At 11:41 AM, Anonymous Hone said...

i say forget about having Trump testify. Who cares? Not worth the battle, not one bit.

Mueller should by now have way more than enough info about Trump's obstruction without getting anything from him. And collusion, aka conspiracy against the United States? Surely Mueller has enough on that, too. And money laundering? Surely that as well. Trump is a criminal, pure and simple. He is using the country for his own ends. And he is doing so blatantly, right in front of our faces, daring the justice department to do anything about it. He aims to screw the justice department big time. He is the king, the emperor, a monstrosity who is assuming total power. He must be stopped.

F..k Trump and his testimony. To me it is a sideshow, a distraction away from the real show.

At 11:42 AM, Blogger VG said...

re: " one way Mueller is trying to get rid of Donald Trump... " huh? Mueller, to my understanding, was charged with investigating various Trump doings. He was not charged "to get rid of Donald Trump".

You are doing the Mueller investigation great injustice here. Please explain.

At 11:55 AM, Blogger Gaius Publius said...

There's a story behind the story, VG. Does it not look to you like every element of the U.S. establishment is working constantly to rid itself of the Trump presidency?

This is independent of the rightness or wrongness of doing that. I've never seen so much unity around bringing down a president in my life.

About Mueller, recall he was the one who, as FBI chief under Bush, made the Anthrax investigation go away when it started to get too close to U.S. government labs. He's an agent of the state, or the part of it that wants to keep power.

If people like what Mueller is doing, great. I have no love for Trump either. But I wouldn't be confused about his mandate. He's the tip of the establishment spear. If he can't find anything to charge Trump with regarding Russia, he'll work some other angle toward his goal. We're actually watching all of this play out.

A test: Imagine this were an investigation of Hillary Clinton and her money. Or worse, of a President Bernie Sanders as I noted in the piece. What would we then think of such a broad-reaching investigation? What would we assume its goals to be?

Just a thought. Thanks for reading!


At 12:18 PM, Blogger VG said...

GP- thanks for your thoughtful response.

Hmm... "every element of the US establishment"? Certainly not the GOP House and Senate. Do you mean "deep state"... I don't think this is quite what you mean, "deep state", or is it?

Thanks for the info about the anthrax investigation. Yes, I remember the anthrax investigation, to the extent that was stopped w/o any satisfactory answers, under some suspicious circumstances. irrc EW wrote a lot about it at the time. But I did not know, or did not remember that Mueller was involved.

Thanks for giving me food for thought.

At 1:42 PM, Anonymous Anonymous said...

I think you meant that when the anthrax thing got close to CHENEY (who almost certainly directed the whole thing and had access to all the bio-weaponry he wanted). If the gummint labs were exposed, cheney was going to be exposed (through his hit squad of whomever they were). Maybe even the bushbaby.
BTW: nobody investigated where the false intel about AL tubes came from too (cheney again). And the forged yellowcake receipts also had quick/dirty ham-handed CIA fingerprints all over it (cheney again). All this was meant to convince stupid americans that saddam and Iraq were legitimate targets and threats. The problem was that people died (anthrax) and their war killed a million more, created isis and gave Europe several terror attacks that killed hundreds.

I wonder if cheney even gives a shit that he and his PNAC put into effect has killed millions already and will keep killing for decades into the future.

Yes, that was a rhetorical question. He doesn't give one furry rat's ass that he killed millions.

No, I do not have kinder thoughts of bill fucking Clinton. Add up all that he and the democraps did during his 8 years. They were responsible for the $20 trillion fraudgasm by wall street.

Nobody forced Clinton to lie during his testimony on his sexual predation habits. He could have simply said that he allowed ML to blow him, and he was sorry. THAT lie (the sorry part) would be unprovable.

I still haven't seen anything that says that Mueller is trying to destroy trump. From my vantage, it still looks like he's doing his all to delay any findings until after the election to see what happens. Also, his job seems to be to "carry" trump past the election so that pence can serve a full 10 years when trump resigns or has his coronary or stroke.
Mueller might scrape a layer or two off the turd pile by putting away a couple more dipshits (cohen maybe? Manafort? Stone? so many candidates). But it sure seems like he's working very hard at NOT arriving at the truth about the trumps any time soon.

At 4:01 PM, Anonymous Anonymous said...

The longer this goes on, the more I think Mueller's real job is to keep the scandal quiet until after the midterm election is past.

At 4:39 PM, Blogger Tom239 said...

You quote Robert Parry: "Flynn was being quizzed on his precise recollection of the conversations and nailed for lying when his recollections deviated from the transcripts."

Flynn had been directed by Jared Kushner to talk to Russian officials on the subject of UN resolutions. To deny that was discussed is more than just getting caught on some detail that didn't match a transcript.

Flynn pleaded guilty to willfully and knowingly making false statements. Defendants are reminded not to plead to things unless they really did them.

At 10:16 PM, Blogger News Nag said...

The U.S. establishment has a few major cliques. Probably about half of them support Trump and the other half doesn't or doesn't care much either way. Your theory of federal government one-sidedness against Trump just isn't credible. You need to revise your understanding.

At 11:37 PM, Anonymous Anonymous said...

Settle down.... Nothin gonna happen. All this writting and hoping for nothin.

At 10:39 AM, Anonymous Anonymous said...

I kind of feel NN here. Just as in 2006 when Pelosi first took ALL impeachments off the table (not just for the bushbaby), even the democraps want to keep the trumpster fire burning hot until at least 2020 so they can maximize their windfall.
And we all know that the Nazis worship at the altar of trump.

But, ultimately, I agree with 11:37. This is a matter for the elites to settle amongst themselves, like gentlemen. The richest white men will win in the end, as they always do. There will be no accountability to any of us/US.

At 4:05 PM, Anonymous Anonymous said...

The article assumes that Mueller, by supposedly leaking Trump's deposition questions to the press, has tried to supposedly illegally bait Trump into committing perjury in his future deposition. From the article, we do not know 1) who leaked the deposition questions; 2) how doing so would bait Trump into perjury; 3) that doing so would be illegal.

Starting with the third issue, the author cites Flynn and Bill Clinton as two instances of illegal perjury traps and equates them with this situation. To my knowledge, neither Flynn's nor Clinton's team of highly-experienced, high-priced attorneys claimed a defense of entrapment. If the author is correct in equating Flynn's and Clinton's situations to Trump's, then Trump's situation must not be entrapment. Most likely, the author is not a legal expert—i.e., does not know better than Flynn's and Clinton's teams of attorneys—and inadvertently misrepresents the principle (he cites Wikipedia instead of either code, case law, or an admissible legal treatise after all). So, really, he can speak to his feelings of unfairness, but he cannot speak to the law.

Second, it is absurd on its face that any intelligent deponent, with a team of highly-experienced, high-priced attorneys literally sitting next to him (who have had thirty days to preview the deposition questions), could possibly be entrapped.

First, leaking the deposition questions could not possibly entrap Trump because he already had them—before they were leaked. And, again, he would have at least thirty days to think of a response. It's not at all clear who leaked them—it's more probably that Trump's team did so in order to claim how "unfair" the questions are in order to politically attack the investigation as unfair and illegal—to end the public's right to know. If Mueller had any incentive, it would be to establish political pressure to ensure that the deposition actually takes place—that Trump, who is a public servant, is compelled to tell the truth to the public.

At 9:50 PM, Anonymous Anonymous said...

Didn't I read that the questions were leaked BY trump's team? If true, then their strategery escapes me.

But then I remember who is on his team. Giuliani's press "tour" seems to prove that he's about as good a lawyer as he was a prez candidate. Maybe an angstrom better than cohen. No more.
It's like... 'he never fucked her; but if he did he didn't pay the hush money; but if he did, it wasn't to keep her quiet to preserve his candidacy; but if it was, it didn't come from the campaign, but if it did, it came from his retainer money.'
In that series, he admits that trump lied about the sex, lied about the money, lied about why the payment was made, and PROBABLY lied about the source of the money.

At the very least, he just gave Stormy a solid civil case and PROBABLY gave Mueller his "trap" for him.

Mueller still has to act, but unless he never asks anything about campaign finances, he almost can't avoid trump committing perjury. It will make Mueller's job that much more difficult to drag this past the seating of the next congress so that pence is eligible for 10 full years.

At 9:43 AM, Blogger Gaius Publius said...

To VG:

Hmm... "every element of the US establishment"? Certainly not the GOP House and Senate.

Yes, the GOP House and Senate, mostly. They hate him too, for about three reasons, but with his approvals so high among Republican voters, they can't quit him.

But most are Milton Friedman neoliberals (so, pro-NAFTA, etc.) and are also in the pocket of the neocon and FP establishment war machine (so, strongly anti-Russia, as Clinton was), so they'd love it (secretly) if Mueller (a Republican, BTW) took him down (or blackmailed him out of office) and left them, and us, with President Pence, who will do exactly as he's told, and gladly.

Mes centimes,


At 11:46 AM, Anonymous Anonymous said...

Not so sure about your gop house. They still sport about 20% baggers, essentially anarchists in suits, and most of them love having their strong man dicking around with the rest of the world. THEY don't love the xxFTAs.
And the doctrinaire neolibs are torn. They and their donors love the tax cut and still get hard over the prospect of cutting and/or privatizing all those sustenance programs (to the point of killing millions of their recipients). But their globalism reflex is being tested.

Pence do exactly as he's told? Maybe. Maybe, as I've said, Mueller's job is to drag this out past seating the next congress so that pence can serve a full 10 years. Maybe the deal is that pence will agree to all the neolib agenda as long as he can make his particularly misanthropic version of Christian talibanism our national religion. He'll impose the death penalty for being gay or a woman who has had an abortion... and, after all, nobody in congress cares about those demos.

At 11:49 AM, Blogger realtime said...

Trump is changing so many established agreements and policies that many groups are unsure if, when it is all over, they will be winners or losers. He is changing tax policies and agreements that may favor some groups over others, exporters over importers, for example, that many think they will be losers in his new economy, but many are unsure and afraid of big changes. His lack of knowledge does not inspire those who follow him to any confidence in his abilities, to change things for the better. The largest employer in the country, Wallmart, is an importer and is surely fighting Trump.

At 4:04 PM, Anonymous Anonymous said...

Hmmmmm, I wonder who sent those fake docs (the info in them was factually correct but wrong font for the year) re: George W. "Baby Bush the Lesser"'s missing service in the Air National Guard that took down Dan Rather?

Odd isn't it? Fox "news" people can tell multiple lies a minute with no consequences.
But Dan Rather, after 30 or 40 years of reliable reporting, gets canned because he got set up with a fake document (with accurate info though)?????


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