If Trump testifies under oath, any lies would be perjury. Does he know that?
In another strange and unsettling performance, President Trump used Friday’s press conference with the Romanian Prime Minister to accuse James Comey of lying to the Senate Intelligence Committee. Three times, the president contradicted Comey’s sworn testimony and denied telling him that he hoped he would let the investigation of former national security advisor Michael Flynn go.
But what made headlines from the press conference was this: ABC newsman Jonathan Karl pointed out to Trump that the former FBI Director had made his statements under oath and asked the president whether he would be willing to do the same. The president responded: “100%.”
Displaying his usual bravado, Trump went on to say that he would be willing to speak with Robert S Mueller III, another former FBI director who is now leading the Russia investigation as special counsel. “I would be glad to tell him exactly what I just told you,” he told the assembled reporters.
The prospect of Trump talking with the special counsel and testifying under oath raises the intriguing question of whether he would willingly turn his daily lies into perjury and whether he could get away with it.
He may be sorely tempted to talk with Mueller as his promise to repeat his version of conversations with Comey under oath suggests. But, if he does so he will find himself in an arena for which he is singularly unprepared. It is an arena where persons do not just lie, they commit perjury.
Perjury occurs when someone knowingly makes false or misleading statements in a court of law or to investigators or signs a legally binding statement that he or she knows to be false.
Perjury is a variation on obstruction of justice. In both, as the Supreme Court once put it, the defendant’s false statement must have the “natural and probable effect” of interfering with a legal proceeding.
Perhaps the critical fact in the modern crime of perjury is that the lie occurs after someone has sworn an oath to tell the truth. When the practice of swearing oaths began “it was believed that the specter of God’s vengeance alone was enough to coax witnesses into telling the unvarnished truth.” But, by the 16th century, legal penalties were also being imposed for lying under oath.
And those penalties were no laughing matter. They included having one’s tongue cut out or having one’s ears nailed to the wood of a pillory.
The gravity of the penalties reflected the fact that society considered perjury to be an unusually serious form of lying because it attacked the integrity of the legal process and undermined the authority of law itself.
Today lying under oath is still a crime, punishable by up to five years in prison. But it no longer carries the stigma it once did.
It is often dismissed as what the former Senator from Texas, Kay Bailey Hutchinson, called a “perjury technicality,” a way for prosecutors, who cannot convict a defendant of a more serious crime, to catch people up in ordinary lies.
Hutchinson’s attitude that perjury is a lesser crime seems to be widely shared.
Even in the most highly watched cases, individuals are undeterred from committing perjury: President Clinton famously lied under oath when he testified about his affair with Monica Lewinsky, and Martha Stewart lied under oath about an insider trading case.
Things can only be made worse when the presidency falls into the hands of someone who, according to one count, made 492 false or misleading claims during his first 100 days in office.
Having survived the furor over the Access Hollywood tapes, which many thought would derail his presidential campaign, Trump likely thinks he can get away with just about anything. Moreover, his behavior throughout his public career does not suggest that he fears God’s vengeance.
There is no reason to believe that the president would behave differently under oath than he does in his day to day dealings with those who work for him and with the American people.
However, Trump and his allies are making a serious mistake in characterizing the dispute with Comey as just a “He Said/He said” situation and if they think that lying under oath is just like lying elsewhere.
An experienced and talented prosecutor like Robert Mueller would not talk with Trump until he has a pretty good picture of what happened between the president and Comey.
He will have thoroughly reviewed Comey’s contemporaneous memos and his testimony before the Senate Intelligence Committee, interviewed everyone with whom Comey spoke after his conversations with the president, talked with White House staff and others about what Trump told them about his meetings and calls with Comey, and, in the unlikely event that there are tapes of those meetings, subpoenaed and reviewed them.
Speaking to the special counsel under oath, Trump would neither be in control of where Mueller’s questioning goes nor be able to cut off or bully his interrogators the way he does reporters.
But having mastered the art of lying in politics, he nonetheless may think that he can do the same if he talks with Mueller.
So, bring on Mueller and the oath “to tell the truth, the whole truth, and nothing but the truth.” None of it would faze the president. Yet his impulsiveness, impatience, and laziness suggest that he would not be able to successfully deal in dishonesty with the special counsel. If he tries to do so, it will likely prove to be his undoing.