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In Mueller investigation, one big question: ‘Why are so many people lying?’

Why We Wrote This

The stream of indictments flowing out of the Mueller investigation all hinge on one prosecutorial tool: the False Statements Act. The measure can offer an avenue to prosecute otherwise elusive crimes. But it can also be misused.

Jonathan Ernst/Reuters/File
Former Trump campaign chairman Paul Manafort arrives for arraignment on a third superseding indictment against him by special counsel Robert Mueller on charges of witness tampering, at US District Court in Washington, June 15, 2018.

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If there is one unifying feature of the Trump-Russia investigation so far, it is the significant number of President Trump’s associates who have been charged with lying to federal agents or to Congress.

Trump allies argue that the mounting number of cases of lying by Trump associates do not add up to a conspiracy with Russia to fix an American election. “There should never have been a special counsel,” says appellate lawyer Sidney Powell. “[Mueller] created these crimes with his investigation.”

Other analysts see the deception in a completely different light: as a road map revealing the outlines of a Trump-Russia conspiracy. “It is one of the critical themes of this investigation, that there is so much prevarication – that so many people are lying across the board,” says Bennett Gershman, a professor at Pace Law School in New York. “Why are so many people lying and typically lying about contacts between the campaign and Russia?”

If there is one unifying feature of the Trump-Russia investigation so far, it is the significant number of President Trump’s associates who have been charged with lying to federal agents or to Congress.

  • Former Trump national security adviser Michael Flynn lied about his contacts with Russia’s ambassador to the United States.
  • Former Trump foreign policy adviser George Papadopoulos lied about the date on which a professor in London told him that Russia possessed “dirt” on Hillary Clinton.
  • Mr. Trump’s former personal lawyer, Michael Cohen, falsely told Congress that negotiations over a proposed Trump Tower project in Moscow had ended in January of 2016, when the negotiations in fact continued at least until June of 2016.
  • Former Trump campaign chair Paul Manafort and his associate Rick Gates lied on Justice Department forms to conceal the true nature of a 2013 lobbying trip to Washington on behalf of Ukrainian government officials, to try to avoid having to register as agents of a foreign government.
  • Mr. Manafort has also been accused of violating his cooperation agreement with special counsel Robert Mueller by lying about his contacts with a former associate in Ukraine with alleged ties to Russian intelligence. The deception reportedly included whether Manafort had shared election polling data with the former associate.
  • Most recently, longtime Trump ally and Republican political operative Roger Stone was indicted on charges of lying to Congress about his attempts to discover the full scope of WikiLeaks’ 2016 campaign to publicize emails allegedly hacked from the Democratic National Committee by Russian intelligence officers.

With reports that Mr. Mueller’s investigation may wrap up soon, the big, looming question is whether Mueller has evidence that Trump and members of his campaign conspired with Russians to undercut Mrs. Clinton’s candidacy during the 2016 election.

The president has denounced the investigation as a “witch hunt.” And Trump allies argue that the mounting number of cases of lying by Trump associates do not add up to a conspiracy with Russia to fix an American election.

Other analysts see the deception in a completely different light: as a road map revealing the outlines of a Trump-Russia conspiracy.  

“It is one of the critical themes of this investigation, that there is so much prevarication – that so many people are lying across the board,” says Bennett Gershman, a professor at Pace Law School in New York. “Why are so many people lying and typically lying about contacts between the campaign and Russia?”

False Statements Act

At the center of each of these charges of deception is a statute that makes it a crime to lie to a federal official or to Congress, called the False Statements Act. It provides that anyone who knowingly and willfully makes a false statement to a federal official has committed a felony punishable by up to five years in prison.

Combined with the perjury statute, the laws provide investigators and prosecutors with a powerful tool to gain leverage over individuals suspected of participating in criminal wrongdoing.

These laws can be critical in defeating an attempted coverup of an underlying crime or conspiracy. But prosecutors also have discretion to use them as a fallback method of meting out punishment when they are unable to prove a more serious crime.

Martha Stewart was famously accused of insider trading and securities fraud. But the crime that actually sent her to prison for five months was that she lied to investigators while being questioned.

Moreover, the lie does not have to involve underlying criminal activity. Any false statement that might throw investigators off track can be prosecuted.  

For example, it was not illegal for Mr. Papadopoulos to engage in gossip in 2016 with a professor in a London bar about Russia’s supposed possession of “dirt” on Clinton. But it was illegal for him to lie to the FBI about it in 2017.

Jeenah Moon/Reuters
Michael Cohen, President Donald Trump's former lawyer, arrives for his sentencing at United States Court house in New York, Dec. 12, 2018.

It was not illegal for Mr. Cohen to engage in confidential business negotiations in 2016, at the height of the presidential campaign, over a potential Trump Tower construction project in Moscow. But it was illegal for him to lie to Congress about it a year later.

And it was not illegal for Mr. Stone in 2016 to try to learn how much damaging information WikiLeaks might have on Clinton. But lying to Congress a year later about his efforts in that regard would be a crime.

Stone’s case is ongoing, but the rest of these crimes took place in 2017 and were committed as a result of questions posed by the special counsel’s office.

And while there is no doubt that lies were told and that those lies complicated the investigation, it is not yet clear whether these cases of individual dishonesty will ultimately prove the existence of a Trump-Russia conspiracy.

Presumably, the special counsel’s office knows the answer. It could be that the most explosive allegations in the Trump-Russia investigation have yet to be revealed. Or the long list of lies by Trump associates could just be individual cases of deception, for their own reasons, unrelated to any effort to cover up a conspiracy with Russia or other crimes committed during the 2016 election.

Smear campaign or ‘meat and potatoes’ investigation?

Critics of the Mueller investigation say that the special counsel’s office has been using the False Statements Act to mount a smear campaign against the Trump presidency.

“There should never have been a special counsel,” says appellate lawyer Sidney Powell. “[Mueller] created these crimes with his investigation.”

Ms. Powell, a former federal prosecutor and author of the book “Licensed to Lie: Exposing Corruption in the Department of Justice,” contrasts the special counsel’s tactics with the 2015-2016 investigation into Clinton’s use of a private email server. 

“Look at the difference in the way the Hillary Clinton group was treated,” Powell says. “They were all given immunity. There were no prosecutions [for false statements] or even suggestions of prosecutions of any of them.”

She adds, “Yet everybody who’s had anything to do with Trump has just been put under the microscope. The False Statement statute has been a key tool of Mueller’s in prosecuting people and squeezing them.”

But Professor Gershman, a former prosecutor and expert in prosecutorial misconduct, says he sees nothing improper in the special counsel’s use of the False Statements Act, calling it “the meat and potatoes of prosecutorial investigations.”

When he was a prosecutor investigating organized crime, Gershman says he often relied on false statements as a way to bring a legitimate charge – and then use that charge as leverage to get the person to cooperate and provide information supporting substantive charges against other people. “That is exactly what Mueller is doing.”

Gershman also disagrees with Trump allies about the thrust and eventual outcome of the Trump-Russia investigation.

“I see conspiracy all over the place,” he says. “I see it throughout the different indictments. If you put them all together, you say there has got to be some kind of conspiracy between people in the campaign and people who are running WikiLeaks and Russian operatives.”

Lying to a federal investigator can also legitimately obstruct an investigation by diverting attention and resources away from the real focus. 

The recent Stone indictment says in part: “By falsely claiming that he had no emails or text messages in his possession that referred to the head of [WikiLeaks], Stone avoided providing a basis for [House Intelligence Committee investigators] to subpoena records in his possession that could have shown that other aspects of his testimony were false and misleading.” Stone has pleaded not guilty to the charges.

Lisa Kern Griffin is a professor at Duke Law School. She says that the special counsel’s efforts to prosecute witnesses for lying is critical to vindicate the integrity of the broader Trump-Russia investigation. 

Perjury and false statements laws are essential tools for prosecutors, Professor Griffin says. “Sometimes that will mean that defendants face process-type charges in cases where the underlying criminality might not merit charges,” she says.

“But that is not this case,” she adds. “This is a case where the underlying criminality may be the most significant ever to be investigated.”

The Enron example

Powell’s criticism of the special counsel’s investigation is based in part on interactions 15 years ago between one of her clients and Andrew Weissmann, who is today Mueller’s chief prosecutor.

In 2004, Mr. Weissmann was deputy director of the Enron Task Force, set up to investigate what was being called the largest corporate fraud in US history. As part of that effort, Weissmann obtained the conviction of four executives at Merrill Lynch for their involvement in a deal to purchase a $7 million stake in an Enron power-generation project on barges in Nigeria. The deal was a year-end accounting maneuver by Enron. 

Weissmann argued that the transaction was a sham because documents he’d obtained suggested that Enron had secretly promised it would buy back Merrill Lynch’s stake in the project within six months.

The case fell apart on appeal. All four convictions on fraud and conspiracy charges were overturned.

Nonetheless, the appeals court, in a split decision, let stand the perjury and obstruction of justice conviction against Powell’s client, James A. Brown.

In an interview with the Monitor, Mr. Brown said he told the truth to the grand jury but that his testimony didn’t fit with Weissmann’s theory of the crime.

According to a transcript of his grand jury testimony, Brown repeatedly insisted that there was no buy-back guarantee. There had been negotiations over one, Brown testified, but in the end, the agreement signed by both parties did not include any such guarantee.

Brown says his lawyers identified a number of witnesses who were directly involved in negotiating the Enron deal and who agreed with his testimony. In response, he says, prosecutors named “everybody who had any kind of contact that would be helpful” to the defense as unindicted co-conspirators. “And they warned them if they testified on our behalf they would be indicted.”

Weissmann also negotiated a cooperation agreement with Merrill Lynch, promising that the company itself would not be prosecuted as long as no Merrill Lynch official made any public statement, in sworn testimony or elsewhere, that might contradict the government’s position in its prosecution of Brown and the other three executives.

This was no idle threat. A year earlier, the Enron Task Force had indicted the accounting firm Arthur Andersen after officials at the company had shredded key Enron audit documents. After the company was convicted of obstruction charges, it collapsed, leaving tens of thousands of employees (most of whom had nothing to do with the Enron matter) out of work. The US Supreme Court later overturned the conviction, but by that time it was too late to the save the company.

A spokesman for the special counsel’s office declined to comment.

In a dissenting opinion in Brown’s case, Fifth Circuit Court of Appeals Judge Harold DeMoss noted that the final agreement that both sides signed did not include a guarantee that Enron would buy back the investment. He said the government relied on testimony and documents reflecting early-stage negotiations and that in his view Brown’s testimony was truthful. 

Judge DeMoss noted that some of the government’s own evidence supported Brown’s testimony.

“A reasonable jury could not convict Brown of perjury where the government speaks out of both sides of its mouth with respect to the allegedly perjurious testimony,” he wrote.

Ultimately, Brown spent a year in prison after his conviction on perjury and obstruction charges. The legal ordeal extended for nearly a decade and generated legal fees of more than $11 million, he says.

“I would say that nobody should talk to Weissmann, or any federal agent, about anything without an attorney with him and a transcript being created,” he says.

After a pause, he adds: “There is no way I would ever talk to the government again, believe me.” 

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