GOTCHA, MR. TRUMP!*
Untitled, Pen and Ink on Paper, 11" x 10", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
Lying to the American people is a not crime under federal law. If it were, Mr. Trump would be on death row. He told his 6,401st lie by saying he tells the truth “when he can.” No, he doesn’t. Whether 6,401 lies (and counting) to the American people in under two years qualifies as high crimes and misdemeanors is a pure political question, even where many are propaganda designed specifically to undermine the government institutions tasked with investigating and prosecuting crimes the liar and his family and friends may have committed.
Given Mr. Trump’s placement of a spy inside the Department of Justice and his uncomfortable choices as the Special Counsel closes in, the Trump propaganda machine is spiraling out of control, into the realm of fact-uncheckable, incomprehensible nonsense. The spin, of course, is the Special Counsel has come up empty — he doesn’t have the goods on Mr. Trump. “No collusion.” “Total witch hunt.” “Total waste of time and money.”
The false narrative is that to save face and get Mr. Trump on something, anything, the Special Counsel must resort to trying to set up Mr. Trump to unwittingly lie under oath or to a federal agent, something he and his information ministers are calling a “perjury trap,” a “gotcha.” Mr. Trump recently suggested the Special Counsel could accuse him of perjury for something as simple or inconsequential as Mr. Trump’s misremembering whether it was raining or the sun was shining on a given day. With Mr. Trump’s shameful, embarrassing abdication of leadership in France and on Veterans Day, I found some dark humor in the example he chose.
Let’s assume for argument’s sake that misremembering weather conditions in answering a question under oath, to a federal investigator or as part of an official government proceeding is of no consequence to the subject matter of the inquiry. That is simply not a crime. That’s not how the crime of perjury or false statement works under federal law. Each crime has specific elements the prosecutor must prove beyond a reasonable doubt. For purposes of this post and to correct Mr. Trump’s nonsense, I include here the most important elements: the mental state and materiality. Misremembering something that is of no consequence to the subject of the inquiry won’t “getcha.” Even so, Mr. Trump’s lawyers will not allow him to sit for an interview because they know he cannot tell the truth even “when he can.”
Untitled, Pen and Ink on Paper, 9.5 x 15", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
While doing some research in anticipation of writing a beautifully crafted post on perjury and false statements under federal law, I found the article linked below which does just that. I encourage you to read the article for a reader-friendly explanation of all elements of lie-based crimes under federal law. The introduction identifies those crimes:
“. . . the general false statement statute outlaws material false statements in matters within the jurisdiction of a federal agency or department. It reaches false statements in federal court and grand jury sessions as well as congressional hearings and administrative matters but not the statements of advocates or parties in court proceedings. . . . Under [the general false statement statute], a statement is a crime if it is false, regardless of whether it is made under oath.
“In contrast, an oath is the hallmark of the three perjury statutes . . . . The oldest condemns presenting material false statements under oath in federal official proceedings. [Another] prohibits presenting material false statements under oath in federal court proceedings . . . . Subornation of perjury . . . consists of inducing another to commit perjury. . . .”
Charles Doyle, Senior Specialist in American Public Law, False Statements and Perjury: An Overview of Federal Criminal Law, Congressional Research Service (May 11, 2018)
Some of the following is taken from that article.
The Mental State
The crimes of false statement and perjury have a mental state requirement. The mental state for false statement and perjury is “knowing” and “willful,” meaning one cannot be convicted of a false statement or perjury unless the prosecution proves beyond a reasonable doubt that the speaker knew the statement was false or did not believe it to be true and willfully presented or declared it. Some courts have characterized perjury as “deliberate material falsification under oath,” acting with an “intent to deceive,” or acting with the knowledge that his conduct was unlawful. Regardless, “the prosecution must show that the defendant believed that his statement was not true in order to convict him” of perjury.
Another key element of the crime of false statement or perjury is materiality. Knowingly and willfully making a false statement as part of an official federal proceeding or under oath is not a crime unless the statement is also “material.” As the article explains:
“Prosecution for a [false statement] requires proof of materiality, as does conviction for perjury, and the standard is the same: the statement must have a ‘natural tendency to influence, or be capable of influencing the decisionmaking body to which it is addressed.’ There is no need to show that the decision maker was in fact diverted or influenced.”
This last statement means proof of the element of materiality is based on an “objective” standard rather than a “subjective” standard. That means the factfinder — judge or jury — must assess whether the statement would have a “natural tendency to influence, or be capable of influencing the decisionmaking body,” and not whether it did, in fact, influence the decisionmaking body. These crimes are meant to punish the combined guilty mind and guilty act, and not whether they were successful in achieving the outcome of the intended deception. In fact, the Special Counsel most likely already knows the answers to many of the questions he would ask and wouldn’t be easily tricked. And I’m guessing that the questions he wants to ask go to the core of potential criminal responsibility and to get to the truth of what occurred.
Materiality nixes Mr. Trump’s repeated lie that the Special Counsel can set him up, trick or trap him into committing perjury with a trivial misstep.
WHO NEEDS DEEP THROAT
When Mr. Trump says something, anything, anyone within earshot knows when he is lying. Mr. Trump is pathologically unapologetic. He seldom admits fault or wrongdoing. Good outcomes are “totally” because of him. Bad outcomes are everyone else’s fault. Saying something adverse to his own interests is virtually the only time we can discern he has spoken truth. On those rare occasions when he fesses to something, it has the ring of truth. Why? People, especially pathological liars, do not say things against their own interest unless those things are true. Indeed, the Federal Rules of Evidence exempt from “hearsay” a declarant’s out-of-court statement against his own interest for that very reason. The Lester Holt interview in which he volunteered that the Comey firing was because of that “Russia thing.” Believe it. Volunteering that his appointment of the wholly unqualified, under-criminal-investigation Mr. Whitaker to serve as acting United States Attorney, the country’s chief law enforcement, to reign in the Mueller investigation. Believe it. Those are confessions to separate crimes: obstruction.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in lastamendment.com