Flynn Perjury Trap

The recent litigation over the dismissal of the prosecution against General Flynn underscores the need for citizens to be wary of the “perjury trap.” Former Bush Administration advisor Scooter Libby, Presidents Clinton and Nixon, television mogul Martha Stewart, and others have also fallen into a “perjury trap” over the years despite being innocent (or at least not readily proven guilty) of any substantive criminal offense.

Broadly defined, a “perjury trap” occurs when a person commits one of two closely-related “process” crimes: perjury or false statement. Perjury is a lie in a legal proceeding while under oath. False statement is a lie in an unsworn statement to a government official, such as an FBI interview. Although a witness taking an oath is frequently informed (by the judge, questioning lawyer, or his own counsel) that he is subject to prosecution for testifying untruthfully, government agents do not always provide similar warnings in unsworn interviews. Many nonlawyers are unaware that false statement, like perjury, is a felony that exposes defendants to over a year in prison, even if they are otherwise innocent and lack a criminal record.

Some people lie because they feel bad about something they have done, even if it is not necessarily illegal. Other times, people lie to cover for a friend, family member, or business associate. Frequently, people lie to avoid admitting facts that would be personally, politically, or professionally embarrassing, even though they are not illegal. Invariably, a witness harms himself by speaking to a government agent in an ongoing investigation without the advice and/or presence of counsel.

The hazards of speaking to government officials, especially without counsel, and particularly during an impromptu visit from investigators, usually outweigh any possible benefit. In United States v. Brogan, the United States Supreme Court held that even an “exculpatory no,” that is, a simple denial of wrongdoing followed by a prompt termination of a conversation by the defendant, without any affirmative lie, constitutes a prosecutable false statement.

During over a decade of working on white collar criminal matters, I have encountered only two instances where an individual who was not at that time charged with a crime helped himself by speaking to law enforcement, and both involved voluntary disclosures through counsel seeking a nonprosecution agreement, not interviews initiated by law enforcement pursuing an ongoing investigation.

The time to tell your story and “clear your name” is after you have retained counsel, ascertained the scope of the investigation and the evidence against you, and have carefully determined that such communications are in your interest. Any interview or proffer with the government should involve an immunity and/or cooperation agreement, and both you and your lawyer should clarify and understand whether any immunity granted is use, derivative use, or transactional.

If government agents are interviewing you to determine if you committed a crime, there are two possibilities: they either lack enough evidence to charge you, in which case you should keep it that way by politely declining to speak with them, or they have decided to charge you and wish to add another charge and damage your credibility by inducing you to lie in response to their questions.

Prosecutors and law enforcement are professionals who understand that the fact that you have hired a lawyer does not necessarily mean that you are guilty. In fact, it probably means that you are innocent and want to keep it that way by refusing to consent to an annoying and embarrassing interrogation. In any event, you are much better off retaining counsel and refusing or limiting an interview than you are lying to government agents. If you have been approached by a government agent or receive a subpoena or target letter, contact a qualified attorney immediately.