Could President Donald Trump enter a “perjury trap” if and when he interviews with special counsel Robert Mueller?
That's what former Trump adviser Roger Stone said during a Washington Post interview in which he admonished the president from sitting down with the special counsel.
“I find it to be a death wish. Why would you walk into a perjury trap?” Stone asked.
Conservative radio host Rush Limbaugh similarly warned: “It's just a perjury trap, and this is the benefit of the doubt, but even if Mueller's not setting it up as a perjury trap, it still is one.”
Their warnings came as Trump, despite his attorneys' concerns, said he would “love to do” an interview “under oath” with Mueller. “I would like to do it as soon as possible.”
Mueller reportedly sought to interview Trump as part of his Russia probe, which included an investigation into whether the president attempted to obstruct justice when he fired FBI Director James Comey.
According to a District Court decision in United States v. Simone, the term “perjury trap” “suggests the deliberate use of a judicial proceeding to secure perjured testimony.”
In other words, Trump would need to lie under oath and during a judicial proceeding in order to enter such a “trap.”
If Mueller intentionally set up an interview — unrelated to his issues that are “material” to his investigation — with the purpose of charging Trump with perjury, Trump's attorneys could move to dismiss those charges.
In order for the interview to be “material” to Mueller's investigation, it must be “important; more or less necessary.”
Black's Law Dictionary outlines when evidence becomes material: “Evidence offered in a cause, or a question propounded, is material when it is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case.”
In an op-ed, Randall D. Eliason, a criminal law professor at George Washington University Law School, suggested Mueller likely wouldn't face a credible accusation that he interviewed Trump just to catch him in a lie:
Either way, the “trap” argument is the same — the claim that investigators interviewed the president only to try to catch him in a lie...
No objective observer could claim Mueller does not have a legitimate investigative reason to interview Trump. Trump was, of course, the head of his campaign and is therefore a key witness on all issues related to possible Russian interference and collaboration. And if Mueller is probing possible obstruction of justice by the president himself, it is critical to try to get the president's side of the story. It's entirely appropriate and expected for Mueller to seek the president's testimony.
Eliason also doubted that the FBI would place Trump under oath for an interview. “Claiming that Trump's testimony would be a perjury trap is like saying driving a car is a 'speeding trap' because being behind the wheel gives you the opportunity to exceed the speed limit,” he added.
And according to John Q. Barrett, a St. John's University law professor, Justice Department policy barred those types of interviews.
“Prosecutors do not do that. It's unethical. It's against Department of Justice policy,” he said, according to The Atlantic.