The perjury trap

In National Review, Andrew McCarthy writes,

Of Course There Is Such a Thing as a ‘Perjury Trap’ And it’s a legitimate reason for President Trump to decline to be interviewed.

...Investigations are generally handled by FBI field offices, not headquarters. Normally, the FBI sends a line agent to interview the subject of the investigation, and the questioning commences only after the subject is informed of the purpose of the interview. But Flynn’s case was run out of headquarters, with the FBI’s top brass in consultation with the acting attorney general. To conduct the interview, the bureau dispatched to the White House Peter Strzok, the FBI’s top counterespionage agent, who generally worked on intelligence cases, not criminal probes. In his fourth day on the job as national-security adviser, Flynn had every reason to believe Strzok was there to talk business, not because Flynn was a suspect. Flynn did not have a lawyer present. We do not know whether Strzok advised him of his Miranda rights (which is often done even when, as in Flynn’s situation, it is not legally required because the suspect is not in custody). Here’s what we do know: The Justice Department and FBI were so hot to make a criminal case on Flynn that they used the Logan Act — an unconstitutional blight on the penal code that has never been used to convict anyone in over 200 years — as a pretext to investigate him.

And what did they ask him about? Conversations of which they had recordings. Why on earth would it be necessary to interrogate someone — let alone a top government national-security official — regarding the details of conversations about which the FBI already knew the details? Why conduct an investigative interview, carrying potential criminal peril, under circumstances in which the FBI already knew (a) it was Flynn’s job in the Trump transition team and as incoming national-security adviser to consult with foreign counterparts and (b) Flynn had not floated any arguably corrupt quid pro quo to Kislyak (e.g., sanctions relief as a reward for Russia’s support of Trump’s presidential bid)?

We don’t know for certain that the Flynn interview was a perjury trap. But it sure looks like one. And regardless of whether Flynn pled guilty because he is guilty (or because enormous pressure, such as the possibility of charging his son, was put on him), we also know that the question of whether to prosecute him was a judgment call — one on which Mueller aggressively said yes, when others had said no.

It is fair enough to say that Flynn could have made the prosecutor’s job more difficult by being fully accurate in his answers. But anyone can give inaccurate answers because we are all subject to human error; the point is that the decision about whether the inaccuracies are criminally actionable — or whether they are inaccuracies at all — is the prosecutor’s. Even the most honest witness cannot unilaterally dictate the outcome by being perfectly truthful.

...In any event, it is fatuous to claim that this stuff doesn’t happen. It happens all the time. If you want to say that President Trump’s lawyers are just making excuses for a client who is prone to lie without being trapped, that is a cogent legal argument. If you instead insist that there is no such thing as a perjury trap just because the concept is being invoked by lawyers for a president you despise, then you’re playing politics . . . or you’ve let your contempt for Donald Trump get the better of you.

Read more here.