Perjury Traps Are No Threat to Trump

(Bloomberg Opinion) -- Defenders of President Donald Trump are strongly opposed to him submitting to an interview under oath with Special Counsel Robert Mueller’s team, seeing ominous signs of a perjury trap. Trump won’t answer questions about his decision to fire FBI Director James Comey nor about what he said to Comey about Michael Flynn, issues central to the question of obstruction of justice. 

A lot of liberals are responding by saying that perjury is only a problem for someone who fears the truth. But that’s not quite right: As experienced lawyers will tell you, simply telling the truth isn’t always a sufficient defense against an unscrupulous, predatory prosecutor. An entirely innocent suspect may get something wrong given that memories are not perfect.Thus snaps the perjury trap: A prosecutor coaxes a suspect who they otherwise can’t charge with a serious crime into lying under oath.

Trump and his team are claiming that Mueller is in fact an unscrupulous, predatory prosecutor. Even if they don’t believe that, and even if Trump could be disciplined to avoid his usual relationship with facts for the duration of the questioning, it would still be very risky for someone to testify when he didn’t have to.

But Trump isn’t just anyone; he’s president of the United States of America.

There’s virtually zero chance that Trump will be indicted for perjury as long as he continues to serve in office. Many (although not all) experts contend that sitting presidents cannot be indicted, and there’s simply no way that Mueller would test that with a perjury indictment. Not even Kenneth Starr tried that against Bill Clinton, and Starr was hardly afraid to expand his own authority as independent counsel or to limit himself to precedent. 

What Starr did do, of course, is refer Clinton’s case to Congress. But that’s where precedent, again, is on Trump’s side. Yes, Clinton was impeached for perjury. But both the Senate and public opinion at the time clearly thought that impeachment for perjury was an overreach.Of course it’s also true that a Democratic House could impeach for perjury even if the public and many experts would believe perjury alone doesn’t rise to the level of “high crimes and misdemeanors.” But if they would do that then all of this is irrelevant, because such a House would have little trouble finding some other pretext for moving against Trump. 

There is no reason for Trump to fear a perjury trap. Most importantly, there is no evidence that Mueller and his team are predatory and unscrupulous. Since there’s no sign Mueller is willing to break precedent and indict a sitting president, he can set aside any scenario involving a perjury trap leading to some kind of verdict in a criminal court. On the political side of this process, Trump isn’t going to be impeached and removed because of perjury alone. Trump can’t be ensnared by this particular trap. 

What’s actually at stake here, therefore, is the politics of a presidential interview by prosecutors. And that’s more complicated. Is Trump better off refusing to cooperate? Jurors in a criminal trial couldn’t hold that against him, but members of the House and Senate certainly could. Especially if their constituents see it as a sign of guilt. What’s more, if Mueller attempts to compel Trump to appear and prevails in court, Trump risks defying a court order, which would certainly be grounds for impeachment and very likely extremely unpopular.

It’s also true, as Matt Yglesias argues, that presidents have an obligation to explain their actions that ordinary suspects do not have. That’s not an obligation that would matter in a court of law, but it can very legitimately be used in the court of public opinion – and, ultimately, if it comes to that, in the Senate seated as a court of impeachment. Even worse, if Trump doesn’t want to explain his actions to Mueller’s team, Congress is free to take Trump’s own televised bragging about obstruction at face value. 

Against all of that is the possibility that Trump would look terrible if he submitted to questioning. And that’s pretty much the choice Trump’s defense team is wrestling with right now. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

©2018 Bloomberg L.P.