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Renato Mariotti @renato_mariotti
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THREAD: How and when are people charged for making false statements? Can we expect Jeff Sessions, Jared Kushner, or others to be charged with making a false statement to Congress or the FBI?
1/ This past week, many of you asked me whether Sessions will be charged with perjury due to his recent statements to Congress. Some of you also asked when being "unable to recall" an answer is a crime.
2/ Two days ago, we also learned that Kushner told Congress he did not know anyone who communicated with Wikileaks, but he forwarded an email from Trump Jr. about his communications with Wikileaks. cnn.com/2017/11/17/pol…
3/ So let's start with the broader question. Many of you viewed Sessions' testimony and thought that he wasn't credible because he often failed to recall answers, evaded answering questions, or answered different questions than he was asked.
4/ In my experience, it's not uncommon for some witnesses to be as evasive as Jeff Sessions. If they testify that way during a trial or judicial proceeding, the jury (or judge) will conclude that they're not credible, just as some of you did when you watched Sessions' testimony.
5/ But being not credible is an issue when you're already on trial for something else. Since Sessions is not on trial, the issue is whether his answer (or non-answer) to a specific question will end up getting him charged with a crime.
6/ Here's a link to 18 U.S.C. 1001, which is the statute that is typically used to charge any type of false statement to Congress, the FBI, or an executive agency: law.cornell.edu/uscode/text/18…
7/ To prove someone is guilty of making a false statement, the government not only has to prove that the statement was false, but has to prove that the statement was made "knowingly and willfully." Basically, that the defendant "intended to do something that the law forbids."
8/ As a practical matter, the government has to show that the person intentionally tried to deceive or mislead the person who was asking the question. The government also has to prove that the falsehood was "material." In other words, that it could have mattered.
9/ This can be more challenging to prove than you think. For instance, let's take Kushner's false statement. I suspect his lawyer will argue that Kushner answered many questions to Congress and was truthful in his responses to the others, so this answer was just a mistake.
10/ The lawyer will say that Kushner didn't remember the email exchange with Trump Jr. because he received thousands of emails during the campaign and that particular exchange wasn't that important or remarkable.
11/ Kushner wouldn't have to testify at a criminal trial. (He could take the Fifth.) If he did, then the prosecutor could cross-examine him about every inconsistency and the jury could evaluate his credibility, like you did with Sessions.
12/ But most defendants don't testify, and Kushner has a great lawyer. (The same guy who got a hung jury for Senator Menendez.) So Mueller would need enough evidence to prove Kushner remembered the Trump Jr. emails and deliberately deceived Congress without Kushner's testimony.
13/ So what kind of evidence do prosecutors use to prove that someone violated the false statement statute? I'm going to walk you through the evidence in some high profile false statement cases. Probably the one you know best is Martha Stewart's case.
14/ This is the indictment against Martha Stewart. She was charged with conspiracy and obstruction of justice in additional to making false statements. As you'll see in the indictment, the prosecutors had additional evidence of deception by Stewart. news.findlaw.com/cnn/docs/mstew…
15/ The most important evidence to the jurors was the testimony of Stewart's assistant, who said that Stewart erased a phone message that suggested she engaged in insider trading. nytimes.com/2004/03/06/bus…
16/ That might seem like a slam-dunk case to you, but here’s what James Comey said about it:
17/ More typical proof of a false statement is when the lie is about something that is enormously important to the defendant. For example, former House Speaker Dennis Hastert told the FBI he withdrew large amounts of cash to store at home: documentcloud.org/documents/2089…
18/ But really he withdrew $3.5 million to pay a person who he molested when the man was an underage boy. No juror would believe that he forgot the real reason why he withdrew the money.
19/ The same thing is true for another case brought by my former colleagues--the indictment of Rod Blagojevich. He told the FBI he did not keep track of or want to know who was contributing to his campaign or how much was being given.
20/ I watched that trial, and there was overwhelming evidence that Blagojevich was intensely interested in who contributed to his campaign, including wiretapped calls where discussing contributions. In the first trial, the false statement was the ONLY conviction out of 24 counts.
21/ So the most likely way that Mueller could bring a false statement charge against Sessions, Kushner, or someone else would be to gather evidence that the false statement was about something that was vividly in their mind.
22/ It doesn't have to be as important as the payoffs were to Hastert or the contributions were to Blagojevich. But Mueller would need to weave enough evidence together to show that the defendant actively knew that he was lying when he made the statement.
23/ Probably the toughest high-profile false statement case that resulted in a conviction was brought by my former boss, Pat Fitzgerald, against former Cheney advisor Scooter Libby. Here's an account of the trial: slate.com/articles/news_…
24/ Mueller could possibly weave together evidence as Pat Fitzgerald did, proving that the defendant had a vivid memory of other events but was contradicted by multiple witnesses or documents on this statement. (Note: Libby was found not guilty on one of two false statements.)
25/ So it is possible that Mueller could charge Sessions, Kushner, or someone else with making a false statement. It will generally require additional evidence that showed that the person deliberately lied, or evidence showing that the underlying fact was very important to them.
26/ Obviously, if they're charged with something else, all of this prior testimony could be used against them if they take the witness stand. Any prior answer can be used to call them out if it contradicts what they say at trial. /end
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