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Trump’s Next Move: Prosecuting Comey for Perjury?


Former FBI Director James Comey is now in a game of legal chicken with the Trump administration. Comey’s testimony (which, in case you missed it, is being given under oath before the Senate Select Committee on Intelligence) and President Donald Trump’s repeated denials of having said anything at all about Michael Flynn, as well as seeking loyalty from Comey cannot both be true. Let’s do a quick side-by-side, shall we?

In mid-May, Trump sat down with Jeanine Pirro of Fox News for an interview. When Pirro asked Trump, “The New York Times is selling that you asked Comey whether or not you had his loyalty was possibly inappropriate…. Did you ask that question?” Trump responded, “No, I didn’t, but I don’t’ think it would be a bad question to ask.”

Trump is also reportedly still denying that he asked for loyalty, as well as Comey’s claim that Trump discussed the investigation of Michael Flynn, and expressed a desire for Comey to let Flynn go.

So if Trump is right, that means James Comey is lying under oath, also known as committing perjury. Here’s the applicable federal statute:

(1) 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;

Comey clearly took an oath. The Senate Select Committee on Intelligence is clearly a competent tribunal authorized to administer an oath. Comey gave both written and oral testimony. The only things up for discussion are: 1) whether Comey stated anything that he does not believe to be true; and 2) whether, if so, those things count as “any material matter.” Whether we believe James Comey or Donald Trump, I think we can all agree that testimony about private meetings between the FBI director and POTUS count as “any material matter.” Demands or pledges for loyalty, directions or acquiescence to back off an ongoing investigation, or the non-existence of such interactions is about as material as it gets. It all comes down to whether James Comey stated anything he does not believe to be true.

In some perjury cases, possible discrepancy between an accused’s perception of particular information and the actual truth behind that information is relevant. Witnesses aren’t expected to be perfect – they’re just expected to be honest. But in the showdown of Comey v. Trump, there’s no rational risk of interpretive differences making the difference. Either Trump asked Comey to drop the Flynn investigation or he didn’t. Either Trump asked Comey for loyalty or he didn’t. Either Comey’s written and spoken testimony is true, or he has committed perjury.

To prove Comey guilty of perjury, a prosecutor would need to introduce evidence that the conversations Comey detailed in his testimony did not, in fact, take place. As always, proving that something did not happen can be tricky. But “tricky” isn’t “impossible.” Perhaps the best evidence in such a case would be the tapes Trump threat-tweeted.

Of course, it’s unclear at best whether the Trump administration would pursue a federal prosecution of James Comey for perjury, even if supporting evidence did exist. However, if the giving of knowingly false testimony given before a Congressional committee by a former FBI-director doesn’t warrant prosecution, it’s tough to know what would. Your move, Mr. President.

[Image via screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos