Benjamin Wittes on “the perjury trap”:

Ok, here’s a little primer on the perjury trap: What it is, what it isn’t, and whether Bob Mueller’s seeking an interview with Trump in which Trump might lie is one or not.

First off, the perjury trap is a real thing. It’s not simply a concoction of the right-wing fever swamp. When it happens—and it is successfully argued only rarely—it is a form of entrapment that can constitute an affirmative defense against a charge of perjury.

Bennett Gershman, in a law review article on the subject, described the perjury trap as “the deliberate use of the grand jury to secure perjured testimony” and suggested that the hallmarks include the intentional solicitation of false testimony by a high-value target who cannot be prosecuted for underlying activity for one reason or another.

He included a link to the article but it’s broken.

Second, it is emphatically NOT a perjury trap to put someone in front of a grand jury believing that he might not be entirely truthful and with a willingness to hold him criminally accountable for any lies he might tell. The perjury trap, like all entrapments, requires more.

At that point I paused to wonder how an interrogation by a prosecutor could ever be entrapment, seeing as how prosecutors don’t go undercover to interrogate people. I came up with maybe trick questions and the like. But the basic difficulty is no doubt why it’s not a very popular defense.

Second, it is emphatically NOT a perjury trap to put someone in front of a grand jury believing that he might not be entirely truthful and with a willingness to hold him criminally accountable for any lies he might tell. The perjury trap, like all entrapments, requires more.

Apologies if the image is unreadable.

Note two things here: First, as with any claim of entrapment, the claim of a perjury trap is an affirmative defense that thus has to be proven by a defendant. Second, the perjury trap requires a showing that the perjurious testimony was procured improperly by the government.

In other words, if Bob Mueller seeks an interview with Donald Trump for good faith reasons related to establishing his state of mind in an investigation of certain of his actions knowing—as we all know—that Trump lies constantly, that is not even CLOSE to a perjury trap.

And yet that is the basis for most or perhaps all of the squawking – “It’s SO unfair, he CAN’T tell the truth, he doesn’t know HOW, he lies every time he opens his MOUTH, talking to him at ALL is entrapment, this is an OUTRAGE.”

That is called conducting an investigation of a subject with a propensity—one shared by many criminals, by the way—to lie to investigators. The reason we have perjury and false statements statutes is to give such people a strong incentive to tell the truth.

Someone will have to explain to Trump what “incentive” means.

As the US Attorneys manual puts it, “when the grand jury is attempting to obtain useful information in furtherance of its investigation, the perjury trap doctrine does not apply.”

Put simply, for the perjury trap argument to be more than simple rhetoric, one would have to show that Mueller was acting in bad faith—was somehow not really seeking evidence for an underlying investigation but was merely setting up Trump to lie.

He added one more thought an hour later.

One other thing about the perjury trap: Given that obstructions are specific intent offenses, it is unimaginable that Mueller would conduct an obstruction investigation without trying to hear from Trump. That’s not evidence of a perjury trap. It’s evidence of an investigation.

Sums up a lot of life, doesn’t it.