With Donald Trump Junior, Jared Kushner, Paul Manafort, and Michael Flynn squarely in the sights of Special Counsel (or as Trump Senior calls him, “Special Council”) Robert Mueller, it’s time to focus on where this investigation will go next. And where it will go next (and it’s probably already there as to Manafort and Flynn) is the flipping phase.
Flipping a suspect involves turning that suspect into a witness — against a person or persons of equal or greater value as prey — with a) promises of leniency in return for cooperation, and b) subtle suggestions as to the serial unpleasantries to come in the event of a, shall we say, less-than-accommodating attitude. (Somewhere along the line, an investigator is going to say to Jared Kushner, seemingly apropos of nothing, “You sure do have cute dimples.”)
As to both (a) and (b) above, a prosecutor needs something to hang over a suspect’s head: a crime. And prosecutors’ favorite tact here is to find some dinky crime a suspect committed that is collateral to the substance of whatever it is the prosecutor is really trying to dig up. Did you improperly use an interstate wire service in the course of your criminal endeavors? Did you fail to properly register those military-grade weapons in your garage? Did you run afoul of an immigration law or probation condition or offender-registry requirement? And oh, did you “forget” to disclose hundreds of foreign contacts and business associations on your security-clearance forms?
Then there’s the granddaddy of all collateral crimes when it comes to flipping perps: perjury. Before nabbing a suspect this way, a skilled prosecutor — Bob Mueller would be one example — will have found skeletons in the perp’s closet that the perp didn’t even know were there. That’s the trick if you’re a prosecutor: before you put a credulous clod like Don Junior or Kushner on the spot, you exhume a cadaver or two, set up a question that the perp cannot possibly answer honestly, and then ask it — while he’s under oath.
When he lies, he’s cooked (medium rare, if Mueller does it just right). Then you tell him a) how popular he’s going to be on Cell Block XXX if he renounces truth, justice, and the American way, and b) how lovely it will be to spend his twilight years with Ivanka after he purges his soul of all its iniquity.
Before diving into the elements of perjury, let’s not forget Jefferson Beauregard Sessions The Third. I’ll use his example — what he told the Senate under oath as opposed to what was true — as we proceed.
What are the elements of perjury?
Perjury, like all crimes, has elements — meaning component parts of the crime every one of which must be proven beyond a reasonable doubt. Here they are:
- The defendant must be under oath.
The defendant in a perjury case must have been placed under oath, and he must have known that he was under oath. At the federal level, this typically means that the defendant was testifying before a grand jury (which Mueller is authorized to impanel) or a congressional committee. A prosecutor may prove this element either by calling a witness to the defendant’s testimony or by producing a transcript. This element could presumably also be established with photographic evidence like this:
- The defendant must make a false statement.
Here, the prosecutor must show not just that the defendant lied, but also that the truth was at odds with the lie. In other words, the prosecutor must produce evidence to establish what was true, not just to establish that the defendant’s statement was false. For example, were I to tell an investigator that my house is blue, and were a prosecutor to bring a perjury charge based on that statement, the prosecutor would have to show not only that I was lying about my house being blue, but also that my house really isn’t blue. Obviously, the same evidence (in my hypo, maybe a photograph showing that my house is green) will usually prove both.
In the case of Jeff Sessions, he told the Senate under oath that he never talked to Russians during the 2016 campaign. In an amended statement, he later said that he never discussed the campaign with Russians. Newly reported evidence (an intelligence intercept of a chat involving Sessions’ interlocutors) seems to show both a) that Sessions was lying when he said that he did not talk to Russians about the campaign, and b) that Sessions did talk to Russians about the campaign.
- The false statement must involve a material misrepresentation.
A material misrepresentation is a misrepresentation that has “a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.” In English, that means that a lie has to be relevant to what investigators are trying to figure out. For example, if I’m being investigated for insider trading and I tell investigators under oath that my fat ass weighs 150 pounds, that’s not perjury — it’s just a sad and easily disprovable lie about an immaterial fact.
Conversely, when Jeff Sessions, in the context of a proceeding about Trump-Russia collusion, said that he never met any Russians (when he did, in fact, meet Russians), that would seem to have been a material misrepresentation.
- The defendant specifically intended to mislead (voluntarily made a statement he knew to be false).
It’s not enough that a defendant say something that turns out to be untrue. For example, I might say to someone, “I’m going to lose weight this year.” When December 31 rolls around and my Santa-Claus ass is still stuffed like a whole mantel full of stockings, that doesn’t mean I’ve committed perjury. When I made the statement, I must at that time have a) consciously represented that I would lose weight, and b) known that I was absolutely not going to lose weight (or even try). The implication of those two things would obviously be that I wanted whoever was listening to me to believe — falsely — that I was going to lose weight. (By the way, did I mention that I’ve lost a little weight lately? True story.)
Didn’t I hear that it was a crime to lie to the FBI even if I’m not under oath?
You did, and that’s a true story, too. Congress tired of all the wasted FBI resources engendered by lying witnesses and passed a law making it a crime to lie to the FBI regardless whether one is under oath. So when Bob Mueller sends FBI agents to interview the Four Horsemen of the Trumpocalypse (Junior, Kushner, Manafort, Flynn), they’ll need to be on good behavior.
Legally, when a witness lies to the FBI, you can hack the first element (under oath) off the list of elements that a prosecutor must prove. The other three elements remain the same: a prosecutor must show that the defendant made a false statement about a material fact with the specific intent to mislead investigators.
Mueller is close to starting the process of flipping witnesses, if he hasn’t already started. To do that, he will learn everything he can about the target’s most loathsome conduct, put the target under oath, and get the target to lie on purpose about a material fact. Then he’ll let the target know that he (the target) is every bit as compromised as the stooge in a game of Russian kompromat.
Bob Mueller is all that stands between us and our international surrender to a foreign adversary. And the biggest hammer in his tool shed is the collateral crime of perjury.
Swing away, Bob. Swing away.