Thursday, November 29, 2018

Smaller and smaller and smaller....

So here's where we are:

He went on to say that special counsel Robert Mueller is making his decisions off of false information and the president is the only one telling the truth.

“You know, it is interesting. In other parts of the world, you can’t even prosecute people for that,” Dershowitz continued.

It isn’t just Cohen’s statements, however. Cohen submitted documents proving the negotiations continued. He had emails and records of conversations that verify his statements.

At the point that Cohen gave this information, the president already submitted his written answers to Mueller and it’s possible he perjured himself already given the documents Cohen turned over.

“Before the president gave those answers, they are going to comb through every one of his answers and see if they can come up with anybody who can contradict anything the president said,” Dershowitz said. “And that is why it is called a perjury trap. Because even if the president believes what he said was true, if somebody will contradict it, then the president can be charged with lying to government officials, which is the equivalent of perjury. So, that’s why it is so dangerous for anybody who is the subject of an investigation to answer questions by the prosecution, because the prosecution then comes through evidence, tries to get evidence that they can then use to show contradictions.”
There is, of course, no such thing as a "perjury trap."  At most, you can impeach a witness with the testimony of another witness, and the trier of fact.  Dershowitz in the video (at the link) defines perjury as "willful" and "knowing," conveniently leaving out the most important element:  "material."  There's a reason perjury is seldom charged in real life, and that's because it is so hard to prove all the elements.  The interviewer suggests perjury is committed if you get the date wrong when trying to remember an e-mail you read; that would never be perjury, it might at best be misrepresentation.  The trier of fact could take it into account in assessing the credibility of the witness, but no one is going to jail because they mis-stated a date on an e-mail under oath.  If the President answers questions in ways other witnesses contradict, it may indicate obstruction of justice, it may indicate a wish to avoid liability, it may indicate the President is a liar.  It does not mean the President is guilty of perjury, not unless the misrepresentation is knowing and material.  Even then, you probably get the President on the crime, not the bad testimony.

But the idea that everyone around this President is a liar, or that the President is being caught in a web of lies manufactured by Robert Mueller, is absolutely laughable.  Mueller couldn't get a guilty plea out of Cohen, and 70 hours of testimony from him, without facts upon which to base a criminal charge.  Indeed, a defense against Cohen's testimony would be that he's already lied once, why isn't he lying now?  (Giuliani has already trotted that one out; not much of a defense with a President whose lies are documented in the press.)  The only response to that prosecutors can raise is to present the evidence that impeached Cohen, that exposed his lies.  The web being woven was woven by Trump; if there are lies that entrap him, he is the father of those lies.  It's ludicrous in the extreme to argue that Mueller is manufacturing lies and using them to support criminal charges and force people to lie further in order to support Mueller's pursuit of Trump.  That's a conspiracy theory on the order of the birds being replaced by drones who are spying on us, or Hillary Clinton being part of a pedophile ring run out of the basement of a pizza parlor that doesn't have a basement.

Dershowitz argues that Cohen's crimes (he lumps them in with the other indictments, never addressing one of them specifically) are crimes only because Mueller is investigating Trump.  In other words, the only criminal action is people lying to government agents.  However, the crimes alleged against Cohen all concern his testimony to Congress, to both the relevant House and Senate committees he was called to testify before.  Dershowitz has to misrepresent the facts in order to make his legally fallacious argument, which makes his argument untenable on both ends (facts and law).  According to the Criminal Information filed with the Plea Agreement, much of information impeaching Cohen is documentary, not the statements of others (which Dershowitz implies are false).  In other words, like Trump, Dershowitz is inventing facts and declaring them more true than the facts themselves.

Nice work, if you can get it.

Paul Ryan understands what happened here:

“I just heard that now,” Ryan said during a “Washington Post Live” event. “He should be prosecuted to the extent of the law.”

“It’s why we put people under oath,” Ryan added. “Just back it up for a second. Lying to Congress: That means he came and testified. That means we swore him under oath. That means we put him on the record. That means we did our job. That means we did our oversight.”

Well, except Cohen has already pled guilty, so he has been "prosecuted to the extent of the law."  Otherwise, yeah:  Cohen lied to Congress, not to Mueller.

The "perjury trap" is committing perjury.  There is no trap if you tell the truth, unless, of course, the truth could incriminate you.  That's what the 5th Amendment is for.  Trump can always rely on that.  Funny Dershowitz never mentions that, though.

No comments:

Post a Comment