Thread by @objkshn

When an attorney knows that a client or witness intends to commit perjury & learns of this through information provided through attorney-client relationship, has to go through, what is known as "perjury dance." That is what DOJ attorneys recently did, signaling perjury to come.

An attorney has competing ethical obligations. (1) owed to the court and society not to suborn perjury; and (2) owed to client to maintain confidences. What happens when these conflict? The Perjury Dance.

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The attorney cannot tell the judge the nature of this conflict due to his attorney-client privilege and so must make an attempt to withdraw from the case and the proceedings. In the case of the DOJ / Census Citizenship case, this step of the dance was completed.

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In fact, this step of the dance was completed by every single attorney assigned to the case. This wasn't a closely held secret. This was widely known to the entire team. And now, by the judge. You see, this scenario does not present itself very often.

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When attorneys ask to be removed due to a "conflict of interest," but cannot reveal the nature of the conflict without violating attorney-client privilege, that signals to court that perjury looms on the horizon. But what can judge do?

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The judge, if it allowed for the removal of counsel in that situation would invite two scenarios, neither of which is helpful. First scenario - that next set of counsel would also request to be relieved.

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Second scenario - that next set of counsel would NOT request to be relieved leaving the court to wonder if that is because the perjury KNOWN to the first set of counsel would be purposefully kept from the second counsel to prevent the conflict from arising?

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Under this second scenario, the court runs the risk of allowing counsel to "unwittingly" (instead of knowingly) suborn perjury. In the end, however, it's still perjury. May as well keep the ones in the know on the case.

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So while this occurrence is super rare and those unfamiliar with these courtroom procedures might be baffled at what happened, those of us who practice in the courtroom and are aware of our ethical limitations and requirements KNOW EXACTLY WHAT JUST WENT DOWN.

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So bow to your partner and do-si-do, this dance is just getting started! Next, the actual perjury. The attorneys still can't ask specific questions they know will elicit a false response so they must be general & vague in their questioning. For example:

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Instead of asking the witness, "Did you want the citizenship question on the census for political advantages" they'll have to instead ask, "What do you want to tell the court?" This vague questioning signals to opposing counsel perjury expected to follow.

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It isn't often this perjury dance arises in the career of most attorneys but most attorneys are well aware of its steps and signals. It is, however, disappointing that this rare convergence of ethical conflicts is occurring within DOJ whose client is "America."

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On those rare occasions a client seeks to commit perjury, the attorney advises the client of the consequences of perjury (prison, felony) and of the attorney's obligation to engage in the perjury dance. Usually clients listen to attorneys they hire for advice.

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