WASHINGTON -- The prospect of President Donald Trump being interrogated by special counsel Robert Mueller stirs the imagination. Lots of documents and testimony have already been collected in the inquiry. What if the president contradicts the record or himself?
Mueller has drawn guilty pleas from Trump campaign intimates for making false statements about contacts with Russians. But that approach isn't easily replicated as Mueller climbs the ladder toward the president.
Bringing a case against Trump -- or a member of his inner circle -- based solely on misstatements to authorities, without establishing an underlying crime, would almost certainly draw fury from Trump supporters. It would stoke Republican suspicions that Mueller is searching desperately for underlying crimes that never occurred. The president's allies and even his own lawyer have raised concerns that the special counsel could be setting what they call a perjury trap.
"Mueller can't afford to do a false statements prosecution" if it's seen as petty, said Sol Wisenberg, a Washington defense lawyer who investigated former President Bill Clinton as part of Independent Counsel Ken Starr's legal team. "If it looks like somebody said something wrong and corrects it a while later I think that won't fly. There has to be some substance to it."
The White House is negotiating with the special counsel's office over terms of a possible Trump interview. His lawyers, though not united, have suggested that the president, who is prone to exaggeration and misstatements, shouldn't agree to a wide-ranging interview, The New York Times reported. One way forward might be for Trump to answer questions with his lawyers present, so he could stop an interview and consult with them before answering.
If there's no agreement on an interview, Mueller could try to subpoena Trump to appear before a grand jury. That could ignite a potential court showdown over the powers of the special counsel to force testimony from a sitting president. For Trump, the danger is that if he loses he might find himself answering questions under oath before a grand jury without a lawyer by his side, increasing the chances that he might contradict himself or others.
The crime of making false statements -- known colloquially among defense lawyers as "1001," its criminal code number -- is a common charge brought in federal investigations, lending credence to the saying that "the cover-up is worse than the crime." Martha Stewart stands as one of the most famous examples, having been sentenced to five months in prison, five months of home detention and a $30,000 fine for lying to federal authorities who were examining her sale of stock in a friend's company.
"1001 is a prosecutor's best friend," said Michael Koenig, a former Justice Department prosecutor now at Hinckley, Allen & Snyder. "It's very simple to explain to a jury. Everyone understands lying. It's not a complicated accounting fraud case where you need to understand nuances of tax law and securities law."
To investigators, lying suggests there is an underlying -- and usually more serious -- crime being covered up. Catching someone lying to investigators is also a standard way to squeeze them into a cooperation agreement, Koenig said.
The threat of a jury trial or more charges prompted the guilty pleas from Michael Flynn, Trump's former national security adviser, and George Papadopoulos, a former campaign aide. Mueller accepted the pleas at an early point in the probe to gain their help in moving deeper into the campaign.
But a misstatement doesn't always rise to the level of a crime. After all, it's hard for anyone to keep facts straight about conversations and decisions made months or even years ago. One person's recollection of events is often at odds with another's. That can make it risky for prosecutors to bring a case on the strength of false statements alone.
For example, U.S. prosecutors recently decided to drop their case entirely against Sen. Robert Menendez, Democrat of New Jersey, after a judge tossed out other counts and left only those related to gifts and alleged false statements.
A misstatement could indeed be called an oversight. The president's son-in-law and senior adviser, Jared Kushner, for example, has revised his disclosure form for national security clearance multiple times to account for previously unreported meetings with foreign contacts. His lawyer called at least one of those changes an "administrative error."
That's why most false statements cases are based on repeated lies that are material to the government's investigation, Koenig said. "There's a distinction between knowingly and purposefully lying to federal agents and simply being mistaken," he said.
Some lawyers have drawn parallels between the Russia inquiry and the special counsel investigation into the unauthorized disclosure of CIA agent Valerie Plame's name by officials in the George W. Bush administration. Special counsel Patrick Fitzgerald never charged the leaker in the investigation, but he brought a five-count indictment against I. Lewis Scooter Libby, Vice President Dick Cheney's chief of staff, for lying to investigators and a grand jury.
In announcing the charges against Libby, Fitzgerald pushed back against criticism from Republican circles that Libby was being prosecuted based on technicalities.
"Our jobs -- the criminal justice system -- is to make sure people tell us the truth," Fitzgerald told reporters at the time. "And when it's a high-level official and a very sensitive investigation, it is a very, very serious matter that no one should take lightly."
The case against Libby began with what he told investigators during an interview and later to a grand jury. He was convicted of making false statements, obstructing justice and perjury.
The Russia investigation could wind up in a similar spot, with cases against individuals for attempting to obstruct the probe proving easier to establish than showing that Trump allies colluded with Russia, said Peter Zeidenberg, who worked as a prosecutor on the Plame investigation.
"You have a cover-up because of what may or may not be illegal," said Zeidenberg, a partner at Arent Fox LLP.
(c)2018 Bloomberg News
Visit Bloomberg News at www.bloomberg.com
Distributed by Tribune Content Agency, LLC.