Rumors are swirling that President Trump’s personal lawyers are suggesting to him that he not voluntarily meet with Special Prosecutor Robert Mueller to answer questions in Mueller’s Russia probe. Of course they are and they well should tell him to not go gently into that good night. As any good criminal defense lawyer who has any experience in Federal prosecutions will tell you, placing yourself before a Federal law enforcement agent to respond to questions is a dangerous trap to be avoided at all costs. It is its own separate crime to lie to a Federal law enforcement agent. So even if they end up having insufficient evidence to prove the crime they are investigating, they can then charge you if they can prove you lied about a material fact.
The statute spells out this purpose in subsection 18 U.S.C. § 1001(a), which states:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully
(1) falsifies, conceals, or covers up by any trick, scheme, or device[ , ] a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both….
Even constitutionally explicit Fifth Amendment rights do not exonerate affirmative false statements. In the 1998 case Brogan v. United States, the Supreme Court rejected the “exculpatory no” doctrine that had previously been followed by several Federal Courts of Appeal, which had held that “the mere denial of wrongdoing” did not fall within the scope of § 1001. The Brogan court stated:
“Our legal system provides methods for challenging the Government’s right to ask questions — lying is not one of them.”
A number of notable people have been convicted under the section, including TV personality Martha Stewart, Illinois Governor Rod Blagojevich, Enron CEO Jeffrey Skilling, Ponzi schemer Bernie Madoff, and most recently former National Security Adviser Michael T. “Lock Her Up!” Flynn. This statute is not new. It dates back to the False Claims Act of 1863, and in 1934 the requirement of an intent to defraud was eliminated to enforce the National Industrial Recovery Act of 1933. So the Feds do not have to prove that you lied to throw them off the tracks or to fool them . They just have to prove you knew you were lying about a material fact. To give you an example of how slim that material fact may be, look at how the statute was used against Martha Stewart. She was being investigated for insider trading. They had some circumstantial evidence that she pulled out of a stock just before it crashed but not enough to convict her or even charge her with insider trading. Stewart avoided a loss of about $51,000 by selling nearly 4,000 shares of ImClone stock on Dec. 27, 2001, rather than the next trading day, when the stock tumbled after regulators rejected the company’s application for a key cancer drug. But when she voluntarily appeared before the US Attorneys and FBI agents who were investigating the matter, she told them that she was not the person who placed a call to her stock broker on an anonymous number that had shown up on his calling records just before he executed the shady trade. They were subsequently able to tie that call to a burner phone Stewart bought in Mexico. She was convicted under the False Statements statute and served about a year in jail.
So when a client is called and told that some Federal law enforcement agent or official wants to “Just ask a few questions” any lawyer worth their salt will shout
So what could the President’s lawyers do. Just like the Supreme Court said in Brogan the legal system provides ways to challenge the Government’s right to ask you questions. They should use those ways. They could try and argue that Mueller lacks legal standing because he is exceeding the scope of his authority. They could argue Executive Privilege trumps (no pun intended)Mueller’s right to force a sitting President to answer questions about the internal workings of his administration. They could force him to issue a Grand Jury subpoena and then fight that out in court which could take months and months. They may bank on Mueller trying to avoid that fight which he may lose at least at the first stage. Mueller might even not issue the subpoena and bank on him having enough information to recommend charges without the interview. The lawyers could take the hit in the public eye by repeatedly stating that while the President is eager to tell his side of the story, the investigation cannot be trusted and has gone too far afield.
Not volunteering to answer questions has its own problems. The Democrats can make a lot of noise shouting that the President must be hiding something if he refuses to go voluntarily. Also, a legal battle keeps the Mueller probe in the news and extends its life by months and maybe even years. It could be a public relations nightmare.
So what should the President’s lawyers do? For me, the balance of these competing interests falls in favor of not going voluntarily. The risk is to great. Criminal defense lawyers struggle in almost every case with a decision whether to have their client take the stand. One of the main factors is the client’s ability to go up there and be credible while also being able to withstand a potentially brutal cross-examination. All who know me are aware that I strongly dislike this President and believe him to be a pathological liar, but even his closest admirers must admit that Trump has an inability to articulate at a high level; he cannot string coherent thoughts into a full paragraph; he is easily distracted; he cannot help but self-aggrandize; he will not admit weakness or the possibility that he was wrong about something; and he believes he is the smartest person in the room. Those traits are a prosecutor’s dream. Especially the last one. Trump will not be questioned by some backwater deputy sheriff. He will interrogated by one of the sharpest legal minds in the country assisted by a bevy of more sharp legal minds who will know the facts of the case cold. No one – least of all our bombastic Commander in Chief – will be able to pull the wool over their eyes or win a verbal fencing match with the Mueller team. Trump will have no idea what Flynn and the many others who are likely cooperating with the Feds have already revealed or admitted to. He does not seem like a client who will be easily prepped. I just don’t see the President being able to be fully prepared to engage in this battle. When Special Prosecutor Kenneth Starr asked Bill Clinton to appear before the Whitewater Grand Jury, I was shouting from the rooftops for him to refuse to answer questions and invoke the Fifth Amendment. He ended up having Articles of Impeachment filed against him over whether he lied about having sexual relations with Monica Lewinsky. If Bill Clinton – one of the most able public speakers and communicators in modern Presidential history – couldn’t avoid the perjury trap, how will Trump avoid it?
My last blog post talked about how the issue of the Nunes memo woke people up to the FISA court’s abuses of the Fourth Amendment and this issue will hopefully make people aware of the serious danger of speaking freely with the Federal authorities – even if you are innocent of the crime for which you are being investigated. If you find yourself in those cross-hairs, you would be wise to get yourself an experienced criminal defense attorney and listen carefully to their advice. Even if you are the President of the United States.
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