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Andrew C. McCarthy on the Mueller “perjury trap” — 45 Comments

  1. It’s hard to locate a street-level Democrat under the age of 70 who actually disapproves of the conduct of Lynch / Ohr / Yates / Comey / Page / Sztrok / Priestap / McCabe / Rosenstein / Mueller / Schiff. That tells you something about the nature of the Democratic Party in our time.

  2. And yet, Flyn pled guilty. This argument is bullshit. As Toobin puts it, if you don’t want to get caught in a perjury trap, don’t lie.

  3. kimp:

    You are, to put it bluntly, stupid, or pretending to be. You have no idea (or pretend to have no idea) what the pressures are that can be brought to bear to make someone plead.

    Or falsely confess in some cases. See this if you want to learn about how that can work.

    It is very very fortunate that neither you nor Toobin were the authors of the Constitution or the Bill of Rights, because you and Toobin would also probably say “if you don’t want the authorities to search you without probable cause and seize materials that implicate you, don’t have any materials that implicate you.”

    Unless, of course, it was you and Toobin, or your political allies, that the authorities were searching without probable cause. Then you’d want those protections, wouldn’t you?

    Oh, and the fact that the initial FBI interviewers of Flynn did not think he was lying has no meaning to you, either.

  4. If you don’t want to get caught in a perjury charge, don’t talk to the feds. In fact, don’t talk to anyone.

    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.

    That’s what happens when you have Laws and the Rule of Laws. In other words, the Law doesn’t rule anybody, only the enforcers which are the feds do.

    Americans will once again start crying for more laws, to protect them from monopolies like Facebook. A perfect time for another “law” to be slipped in and forgotten, only to be activated later like a sleeping suicide cell.

  5. Andy used to be the polar opposite to what he is now when prosecuting the Blind Sheik. Andy valued hidden identities of informants. Andy valued prosecutorial interviews with “subjects” of SDNY investigations.

    Andy used to value wiretap surveillance.

    In sum, Andy has lost his mind on Trump.

  6. A 2016 Washington Post article reported that 46% of the people in the U.S. could not come up with $400 dollars cash if they absolutely had to (say, for a new set of replacement tires for their car)–they could put it on a credit card, possibly borrow the 400 dollars from relatives and friends but, if those alternatives failed, they couldn’t raise the $400 dollars.

    Another article, out about the same time, reported that 61% of people here in the U.S. had less than a $1,000 in savings, and another 21% had no savings at all.

    Thus, while there may be quite a few rich people around, most of us do not have a lot of money, investments, and particularly liquid assets.

    The object in going after Flynn and others in Trump’s Administration is not just to take them out of the picture–to neutralize them, to deprive Trump of their assistance, and to scare away others, so that they won’t come to work for Trump or his Administration–but, also, to punish them, and the process is the punishment.

    So, as I understand it, Flynn pled guilty because, first, the costs of hiring lawyers to represent him during various appearances and court pleadings bankrupted him–according to reports, he even had to sell his house to pay his legal bills, and, second, the hard ball prosecutors threatened to also prosecute his son if Flynn didn’t plead.

    This is a very nasty tactic that the Mueller crew is using, as a way of destroying people from Trump”s circle who they view as their enemies–often without actually taking them to trial.

    They accuse you of something, call you in for questioning, get you involved in various legal proceedings, and as your legal bills mount up–unless you are very wealthy–you’re soon bankrupted. The prosecutors have, in essence, unlimited resources, you have only your personal assets. They don’t even have to get to the stage where they have to prove anything in court. The process is the punishment.

    Carter Page says his legal bills are over $100,00 so far. Roger Stone says his legal fees are now approaching $500,000. Former Trump advisor Michael Caputo says he now expects to pay around $25,000 in lawyer’s fees each time he is called in to be questioned by a Congressional Committees, and as far as I am aware of, none of these three men have actually been charged so far with anything in an actual court of law.

    Does the average citizen have an extra hundred thousand dollars lying around?

    Do You?

  7. A retired FBI agent I once met chuckled about reading in the papers that someone had been prosecuted for lying to the FBI. “We assumed people were lying to us.” There is no analogue to this crime in New York law, where perjury and related offenses require you be under oath or that you affix your signature to a document which includes a jurat. It’s a misdemeanor bar when you give oral testimony under oath. By the way, contrary to what’s normal practice today all over the country, the FBI does not record interrogations. Hmmmm….

    As I was saying, street-level Democrats don’t disapprove of Inspector Javert if he’s pursuing Republicans. See Spain in the early 1930s. They’d best reconsider, because that sort of mentality leads to situations that do not end well.

  8. Michael Wiley:

    You are an unintentional humorist.

    First of all, “Andy” ( a friend of yours, perhaps? you seem to be on a first-name basis) doesn’t like Trump and is not a supporter. And that’s just first of all.

    Second of all, there is no blanket condemnation by McCarthy of “hidden identities of informants,” “prosecutorial interviews with ‘subjects’ of SDNY investigations,” or “wiretap surveillance.” These techniques you have listed are all valuable prosecutorial and investigational tools, as he acknowledges.

    But they are powerful tools, tools which must be safeguarded against abuse by authorities. That abuse is sometimes against innocent subjects and sometimes against guilty subjects. Either way, it is abuse and needs to be stopped.

    McCarthy is consistently against prosecutorial and/or investigational abuse of these powerful, useful tools.

    Plus, perjury traps for the purpose of trapping someone in perjury who otherwise has committed no crime at all (such as Flynn, the subject of McCarthy’s piece and of this post) are by definition pernicious.

  9. Recall Bruce Ivins. His savings were already depleted and his pension was in danger. That’s what federal investigations can do to people. There’s a case to be made against Ivins, but it wasn’t a slam dunk. The FBI latched on to Ivins after covering itself with ignominy ruining the life of Stephen Hatfill. Guess who was FBI director during these debacles?

    And state investigations can do this to people as well. Some years ago I saw a heartbreaking Dateline episode about a landscape contractor who had had to face highly implausible charges of having murdered his wife. He was acquitted at trial but left with $400,000 in debts to his lawyers. I think he lost his business as well.

  10. ‘Show me the man. I’ll show you the crime.’ L. Beria

    How quickly progressives forget.

  11. om: they have forgotten nothing; trap-setting is a feature, not a bug.

    BTW, I didn’t see any links from McCarthy to a leftist actually saying (in his words)
    There is no such thing as a “perjury trap.”

    However, this piece is kind of a back-handed twisting sort of admission that they exist.

    https://www.politico.com/magazine/story/2018/08/11/trump-mueller-interview-perjury-truth-219350

    “If Mueller has set a perjury trap—and what self-respecting prosecutor doesn’t keep one in a back pocket for emergencies?—it won’t resemble a rabbit snare as much as a fisherman’s trotline with multiple hooks, the better to catch the big and small fish who have schooled with Trump. Trump might be able to stop in the interview, but he can’t stop the hunt.”

  12. There is another big reason for not talking to Robert Mueller, and that is to preserve the proper Constitutional authority and independence of the lawfully elected Executive branch (which is vested in the person of President Donald Trump and nowhere else).

    This has been a set-up from Day One, a way for the opposition to hinder and sabotage Donald Trump, even though he won the election. All along, it is Mr. Trump who has done nothing wrong, while it is the FBI and the Justice Department that has been mendacious, obstructionist, intrusive, and otherwise engaged in shenanigans.

    This whole thing stinks from top to bottom. It’s paving the way to a future where political conflict will not end once the election results come in, but will intensify as the parties attempt to find something, anything to put their political opponents in jail or to drive them out of office. This will happen every time in the future. Mueller and Rosenstein are fools; they may be institutional men trying to protect the establishment, but they are setting things up for far worse outcomes.

  13. “As Toobin puts it, if you don’t want to get caught in a perjury trap, don’t lie.”

    The naivete’ behind this comment is interesting. The FBI sent, not field agents, but the head of counterintel to interview Flynn under the pretext of arranging the relationship with a new Administration. The agents, who do not record interviews, reportedly did not believe he lied. Sally Yates, the outgoing assistant AG, decided to charge him anyway. This was the perjury trap to end all perjury traps.

  14. The naivete’ behind this comment is interesting.

    1. Toobin’s never been politically non-aligned and you could likely build a case he’s a partisan hack.

    2. Toobin’s career as a working lawyer lasted about 2 years. He was a journalist before he went to law school and he’s been one for about 90% of the time succeeding his receipt of a JD. His time in law included some summer clerking, one year as a clerk for an appellate judge, and one year on the staff of Lawrence Walsh, who wasn’t an exemplar of prosecutorial ethics (or of administrative competence, either). Some of the rap on Walsh finds its confirmation in Toobin’s own memoir of working for him.

  15. As an interesting story, this is a kind of similar to what happened to John McTiernan, director of Hunt for Red October, Predator and Die Hard. One of the best action movie directors ever.

    He was phoned early morning by a FBI agent asking some routine questions. McTiernan was still sleepy and didn’t pay much attention. Long story short: he has been in jail since then. Another perjury trap.

    It was known later on that the FBI agent had been an aspiring actor who was rejected in the casting of Hunt for Red October by McTiernan.

    https://www.buzzfeed.com/mhastings/exclusive-the-tragic-imprisonment-of-john-mctiernan-hollywoo

  16. Yann:

    That’s quite a tale.

    McTiernan seems to have been the proverbial ham sandwich.

    Never talk to any prosecutorial authority without a lawyer present.

  17. Actually, this tale (and the Flynn one) says a lot about the cultural shift in protestant countries. In most Spanish/Portuguese-based countries, there’s no such a thing as perjury trap: agents or police don’t have that power.

    Giving such power to some federal or government agent requires a degree of citizenship that (sadly) those countries don’t have. People must accept that the rule of law is above personal or political goals, otherwise, that power will be systematically abused and eventually lost. That seems to be the current path in US.

  18. Yann:

    Lying under oath, about a material fact—in court or a deposition—is the crime of perjury. IMHO lying to the FBI during interrogation should not be criminalized. It is too powerful a weapon, far too easily abused, and there is no need for it.

  19. Fully agreed.

    On the hand, for a country to have that rule without being systematically abused, that’s a sign of a healthy society.

    Taking away this power is like putting a lock in the door: a smart choice. But when you must start thinking about any of them… that’s a symptom of things going worse.

  20. And that’s why no one should ever talk to or answer the questions of any law enforcement officer at any level of government.

  21. The outrage of everyone in America is irrelevant to the left. The Mueller investigation will continue until either he calls it quits or until he is FORCED to stop. Now who do you suppose has the authority and willingness to end this farce?

  22. Some links to a person on the left saying there’s no such thing as a perjury trap: this, as well as this and this.

    Charles Sykes established a name for himself 30 years ago as a critic of higher education. I would wager more likely a diehard NeverTrumper than a member of the left. Ed Brayton seems to be some sort of professional atheist. The third link is to Jeffrey Toobin. These three have one thing in common: they’ve never practiced criminal defense law. See Donald McClarey on this point (as he has a criminal practice in addition to his bankruptcy practice): if you’re the subject or target of an investigation, disclose facts as necessary through competent counsel. People who think they can explain themselves to law enforcement learn the hard way that they cannot.

  23. Art Deco:

    And you don’t have to have been a defense lawyer to know that. I think people think if they are innocent, they are protected. Wrong!!

    And people like Toobin almost certainly KNOW that “just tell the truth and all will be well” is garbage. He’s not that stupid; he’s a partisan hack.

  24. No worries: according to President Bill Clinton and his followers, perjury isn’t an impeachable offense. A President can commit perjury in a room full of lawyers, in front of a judge, on video … and walk away with a fine.

  25. kevino:

    Clinton did not commit perjury. I’ve written comments about this before, so I’m not going to go through it again, but see this.

  26. Never answer without prepproval of a lawyer. and first make sure you can trust the attorney.

  27. From the link Neo provided on the definition of “sexual relations” and how it was not perjury for Clinton.

    1. Contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person [that is, any other person, in this case, Monica Lewinsky] with an intent to arouse or gratify the sexual desire of any person [Lewinsky];

    Contact means intentional touching, either directly or through clothing.”

    Given that understanding, the definition clearly does not include oral sex performed on Clinton. Why? Because oral sex is performed with the mouth, and “mouth” is not listed among the other body parts in point 1. Furthermore, a man receiving oral sex is generally considered to be receiving pleasure rather than giving it, and so fails the criterion “to arouse or gratify the sexual desire” of Ms. Lewinsky. Which may make Clinton sexually selfish, but that is not illegal.


    Pretty much a legal definition loophole.

    But this key issue is whether there is enough to get an indictment and go to a trial.

    Trump would be wise to delay, not reject, talking to Mueller — and constantly ask for written questions, as well as information about what crime Mueller is investigating.

  28. Just read an incredible article by very detail oriented researcher “Sundance,” who cuts through all the confusion and takes the often disconnected pieces of information–the concealing blizzard–and orders them in a way that highlights and connects the dots, using specific pieces of information that document the ties between the MSM, Steele, Fusion GPS, Ohr, Strzok, Page and the FBI in a very comprehensible fashion, as they all move in concert to push the Trump-Russia collusion lie.

    Says Sundance, just one revelatory piece of information that sets this analysis off on the road to discovery is the fact that not only the Senate Select Committee on Intelligence, but also several major media sources –WaPo, NYT, Buzzfeed–have all had the entire, un-redacted FISA application on Carter Page in their possession since March 17th, 2017 and, yet, the MSM has reported on this story the way they have.

    This, it seems to me, is a blockbuster article that finally brings this whole campaign to get Trump into much clearer focus.

    This article, titled “Last Refuge,” can be seen on Conservative Treehouse, at https://theconservativetreehouse.com/2018/08/12/the-media-are-hiding-their-knowledge-and-duplicity-buzzfeed-wapo-and-new-york-times-had-unredacted-fisa-application-for-over-a-year/

  29. …face value…

    No, nothing should…but my oh my, what a tangled web’s been awoven….

    And so absolutely ingenious….

    Alas, for those who worship at the shrine of “Plausible Deniability” (and do their utmost to assuage its ceaseless whims), there is a yet more jealous god who declares, insists, admonishes, warns: “Thou shalt have no other gods before Me….”

    Anyway, here’s the magnum opus:
    https://apelbaum.wordpress.com/2018/03/17/the-mechanics-of-deception/

  30. parker on August 12, 2018 at 11:52 pm at 11:52 pm said:
    Never answer without prepproval of a lawyer. and first make sure you can trust the attorney.
    * * *
    ..and bring a bug-sweeper / video-blocker to all your meetings.

  31. Will read the Sundance article later — not taking anything at face value, but there are far more dots to connect than any of us know about yet — here is another collection to draw a picture from:

    https://libertyunyielding.com/2018/08/13/was-steele-dossiers-russian-intel-source-sitting-in-at-june-2016-trump-tower-meeting/

    Concluding grafs:
    But in the Russiagate drama, everything keeps pointing as it accumulates – connections, methods, intent – away from Trump, and toward the people who have been targeting him. You can’t make anything Akhmetshin did “about” Trump’s activities or intentions. There’s no logical connection.

    But Akhmetshin is up to his eyeballs in what Hillary, the DNC, Fusion GPS, the DOJ, the FBI, and apparently the Russians (through Veselnitskaya and her cohort) did. And if you include the parenthetical caveat, he is, in fact, a “former Russian intelligence officer (? not entirely clear) who lives in the U.S.” It’s quite possible he was up to his eyeballs in what Steele did. Check this out forthwith, or sooner.

  32. neo: Sorry, President Clinton committed perjury. When presented with a written definition of a sexual relationship that was very explicit, he testified that he understood the definition. When asked if, based on that definition, he had a sexual relationship with Lewinski, he said, “No.”

    He was not charged with perjury by the judge, but he committed the act.

    RE: Your article
    RE: “First, Starr never provided convincing evidence that it was Clinton’s intention to lie, rather than he was mistaken, confused, or honestly believed his interpretation of the court’s definitions.”
    Wrong, the definition was very specific. He could not be mistaken, confused, or twisted the definition. Further, his legal team fought over this definition at length.

    RE: “Second, many of the alleged perjury charges were immaterial (irrelevant) to the case, and cannot be prosecuted.”
    But this wasn’t, and it destroyed his credibility. “Many” isn’t “all”.

    Re: “Third, many of Clinton’s answers were technically true.”
    “Many” isn’t “all”.

    RE: “Fourth, the Republicans have taken the odd position that where Clinton and Lewinsky’s testimony differ, it must be Clinton who is lying.”
    The dress is definitive on this point.

    The article provides a link to a defense in the deposition that is silly (i.e. what “person” used what body parts to do what to whom). The judge found Clinton in contempt of court for giving false testimony. He offered no defense. He was dragged before the AR Bar for the same reason. He resigned before the worst punishments could be assessed.

  33. AeosopFan–When I read the news of this settlement, my first reaction was that it was “a day late and a dollar short.”

    First of all, $3.5 million dollars is way too little for what the members of these many groups went through.

    But, much more importantly, it isn’t the key perps–Lerner, Koskinen, and others– who are paying out this settlement out of their own funds, it’s taxpayer money.

    Those who did the deeds–they remain unaccountable, taxpayers forked over $3.5 million dollars, but the damage was done, the end was accomplished, and these groups were very effectively prevented from fully participating in the election.

    Moreover, I believe I have seen an article or two asserting that whatever they say, some government employees at the IRS are still doing this same kind of stuff today.

  34. AeosopFan–This all goes back to a comment I’ve made here several times over the years, about how hard it is for a President–any President–to get his agenda actually implemented if those Executive branch managers and “civil servants” who are tasked with carrying it out are hostile to it.

    In practice, the President gets to appoint a few people at each Executive Department and Agency to steer that ship, that organization, at the speed and in the direction he wants.

    But, these Presidential appointees can stand at the Helm, can turn the Ship’s wheel, pull all the levers, and push all the buttons they want, but if those below them are not willing to do what they order, if these levers and buttons and that wheel are not really connected to the engine and the rudder, that ship ain’t going in the direction they are trying to steer it in.

    All those pretty solidly leftist civil servants, that make up the supporting pyramid below these few Presidentially appointed leaders at that pyramid’s apex, simply have too many ways of derailing, watering down, slow-walking, or just ignoring any change in direction or speed that they are not in agreement with.

    It reminds me of the old story about some prisoners in a POW camp who were marching across the yard, and one of their guards yelled at them to step up their pace. Well, they upped the cadence they were calling, but they never actually moved their feet any faster.

  35. kevino:

    I’m well aware of the Clinton case. It was not perjury. I’m not going into it any further at the moment except to say that I’ve written about it before and I’m also well aware that most people are convinced he did commit perjury. I gave a link that explained some of the reasons why I believe what I believe.

    You can find a link to some previous discussions here of these issues, including that of the bar actions against Clinton, here as well as here (that latter link deals with the perjury question). Here’s a quote from that link:

    As for the reason Clinton was disbarred in Arkansas, it was not for perjury, and no court even alleged he had committed any crime. As part of the settlement of Paula Jones’ suit, Clinton was found by the judge to be in (civil) contempt of court for his misleading and evasive testimony. Why didn’t the court say “perjury?” Almost certainly because perjury was not committed. Clinton actually was not disbarred permanently, either; he was suspended and unable to practice for five years in Arkansas and then would become eligible, although as far as I know he has never petitioned to do so. His suspension from practicing before the Supreme Court followed automatically from the Arkansas action, and there was absolutely no judgment on the merits by SCOTUS either involving perjury or contempt of court.

  36. AesopFan–only part way through this apparently extremely masterful, complex, comprehensive, and very impressive Apelbaum analysis, and if the methods used are, indeed, able to gather and analyze such detailed information, and what is reported is true, this is by far surpassing in complexity, technique, and sophistication any analysis–using any methodology–that I have ever seen.

    And this is supposedly just information gathered from publicly available, “open source” material.

    It makes Sundance’s analysis look like the paste smeared work of a clumsy first grader.

    This analysis is also extremely frightening, because of it’s demonstration of the enormous power and sophisticated penetration and information gathering and analysis capabilities of today’s computer driven programs.

    P.S.–This guy is the first person I’d hire if I was looking for a great Intelligence Analyst.

  37. neo: We’ll have to agree to disagree. I read your link, and I can poke holes in it easily (and did above).

    He was cited for civil contempt for the act because that was all the judge could do. He was given the opportunity to defend himself; his lawyer stated that he would (publicly); but he offered no defense. As such, I’m inclined to agree with the judge (a Clinton appointee). Her words were direct:

    “On two separate occasions, this Court ruled in clear and reasonably specific terms that plaintiff was entitled to information regarding any individuals with whom the President had sexual relations or proposed or sought to have sexual relations and who were during the relevant time frame state or federal employees. . . . Notwithstanding these orders, the record demonstrates by clear and convincing evidence that the President responded by giving false, misleading and evasive answers that were designed to obstruct the judicial process. . . .

    At his Aug. 17 appearance before the grand jury, the President directly contradicted his [Jan. 17] deposition testimony by acknowledging that he had indeed been alone with Ms. Lewinsky on a number of occasions during which they engaged in ‘inappropriate intimate contact. . . .

    Simply put, the President’s deposition testimony regarding whether he has ever engaged in sexual relations with Ms. Lewinsky was intentionally false and his statements regarding whether he had ever engaged in sexual relations with Ms. Lewinsky likewise were intentionally false, notwithstanding tortured definitions and interpretations of the term ‘sexual relations.’ . . .

    It simply is not acceptable to employ deceptions and falsehoods in an attempt to obstruct the judicial process.” — Judge Wright

  38. Snow – agree with you on all three comments.
    I’ve read through a great deal of the Sundance corpus on Russiagate (following his internal links), and although the prose is purple and the tin foil hat is shiny, he sources all of his arguments to the documents, and makes some shrewd guesses to fill in the blanks.
    Staying tuned…

    On the impotence of political appointees: it was once remarked about General Eisenhower that, now he was President, he would be so disappointed when he gave an order and nothing happened.
    See the ongoing frustration about Labor Secretary Alex Acosta on PowerLine.
    (Wonder if he is related to CNN’s Jim Acosta??). This is just the latest post.

    https://www.powerlineblog.com/archives/2018/08/alex-acosta-draws-praise-from-key-obama-era-dol-official.php
    “I think Trump thought he was getting a conservative Secretary of Labor, something he clearly wanted as his selection of Puzder shows. At a minimum, I’m sure Trump thought he was getting something other than the ninth and tenth years of the Obama DOL. I doubt Trump consciously abandoned his clear desire to undo the Obama-Perez agenda.

    Trump was the victim of very bad advice. Now he has too many things on his plate to worry about the Labor Department. Thus, we’re stuck with Alex Acosta unless and until he parlays his hard-won popularity on the Hill into the high-level federal judgeship he undoubtedly covets.”

  39. Yes, it is extraordinary if quite dense—like bushwacking through “the swamp” with a computer (combined with his genius and experience) instead of a machete…

    In more manageable terms, perhaps, it’s basically, “I’ll call you (on ‘collusion’) and raise you (to CONSPIRACY)”.

  40. Don’t Disobey the Law. Which law? That depends on what the lawyers and feds say.

    See, the problem with those REpublicans, including here, that uptalked Rule of Law… stuff, is that the US does not have Rule of Law. If it did, it would be better.

    You just have to obey the Authorities, sit down and shut up. If they need you to jump or do something else, you will be told.

    This is the kind of “high tech civilization” that resulted from Americans giving their power to DC. Now they want to give even more power to DC to “fix” the problem that was caused by Americans outsourcing their power to DC. But what they forgot is that you can’t fix the power because you don’t have the power any more. People gave it up. You think you can get back all the power from DC that people gave up? That’s not going to be easy.

    How about we write more laws so that lawyers can get paid more. That way whether the prosecution wins or the defense lawyers wins, nobody in the middle class will win.

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