Much has been written recently about the incorrect statements President Trump has made. I use the word “incorrect” to be politically correct. A New York Times columnist provided a “definitive list: of “lies” in a column in June which was updated a couple of weeks ago. Thus, far, none of those statements were made under oath and therefore do not support charges of perjury.
According to reports this week, Special Counsel Robert Mueller has convened a grand jury and issued subpoenas regarding the Russian probe. The grand jury proceedings are conducted in secret and unless someone who was subpoenaed confirms issuance, the government will likely not reveal a list of those who are called. Many public statements have been issued by those involved in the Russian situation, including the President, Donald Trump Jr., Jared Kushner, and others. Twitter has been active with statements of denial, accusations that a witch hunt is being conducted and statements of condemnation.
Many of us can remember the proceedings in 1998 involving the impeachment of President Clinton. President Clinton was impeached by the House of Representatives on a party-line vote of 228-206. Newt Gingrich, ironically an adviser to President Trump, was the Speaker of the House and led the efforts to impeach President Clinton two years before his second term ended.
An impeachment is based on Articles of Impeachment. The grounds for impeachment were that President Clinton committed perjury before a grand jury and that he obstructed justice. Two articles of impeachment failed, a second count of perjury in the Paula Jones case and another accusing the president of an abuse of power. President Clinton became the third sitting president against whom impeachment proceedings were initiated.
President Clinton and Andrew Johnson were the only two to be impeached. President Nixon resigned before the impeachment vote was held in the full House of Representatives.
In the first article of impeachment, Clinton was accused of giving perjurious false and misleading testimony to the grand jury, and in the second he was accused of obstructing justice. Both articles were based on a civil lawsuit filed by Paula Jones. The United States Senate held a trial in February of 1999 and President Clinton was acquitted of the charges.
Brad Sherman, a Congressman from California, has introduced an article of impeachment against President Trump accusing him of obstructing justice during the federal investigation of Russia’s 2016 election interference. No action has been taken on that resolution.
The next few months should be exciting, but danger looms. There has been speculation that President Trump may fire Robert Mueller and bi-partisan legislation has been introduced to deter the President from doing that. There is speculation that the President might just pardon everyone, including himself. If that were to happen, I don’t think many would disagree that we would be in the midst of a constitutional crisis.
It might be worthwhile to visit the elements of perjury as we approach the grand jury proceedings. The definition of perjury in Missouri statutes is more detailed and restrictive than the federal law. Under federal law, one commits perjury if “having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.” A separate federal statute makes it unlawful to make material false statements under oath before or ancillary to federal court or grand jury proceedings.
Under Missouri law, a person commits the offense of perjury if “with the purpose to deceive, he or she knowingly testifies falsely to any material fact upon oath or affirmation legally administered, in any official proceeding before any court, public body, notary public or other officer authorized to administer oaths.” The Missouri law defines “material fact” if “it could substantially affect, or did substantially affect, the course or outcome of the cause, matter or proceeding.” Knowledge of materiality is not required under the Missouri statute. That the definition of material fact requires that it substantially affects the course or outcome of a proceeding makes the Missouri statute more restrictive.
The interesting part of the Clinton impeachment was that it arose from a civil case. Paula Jones had accused the President of sexual harassment and his deposition was taken in that case, and he was later accused of lying in testimony before the grand jury. I don’t think anyone, regardless of party affiliation, can claim that this was not a very sad and embarrassing time in American History.
Are we approaching another such time in our nation’s history almost twenty years later? Thus far, President Trump has not committed perjury because he has not testified. Whether he has violated his oath of office is an entirely different matter which is a subject of debate.
One thing is certain, as different people are subpoenaed to testify before the grand jury, extra caution is warranted. A leading question is one that suggests the answer. An unwritten rule of examination is to not ask a leading question unless you know the answer. In the setting of a grand jury, leading questions that suggest an answer usually means that the questioner has some document or other testimony that supports the question. Those subpoenaed can make all kinds of public statements and tweet ad nauseum, but even those statements not under oath should be made cautiously.
These are perilous times for many.
-- Bob Buckley is an attorney in Independence, www.wagblaw.com. Email him at firstname.lastname@example.org