What Is Incitement to Perjury?
Last night, BuzzFeed News released evidence that Donald Trump actively instructed his former personal advisor, Michael Cohen, to lie to Congress about the Trump Tower Moscow project. If you’ve woken up to a graph filled with Twitter lawyers screaming incitement to perjury and you’re not entirely sure what that means, here’s what you need to know.
How accurate is perjury?
Simply put, incitement to perjure is a crime of coercing another person into perjury. There is no incitement to perjury without perjury itself, so it is important to first understand the underlying crime.
Most people correctly associate perjury with lying in court, but the full definition is much broader. Anyone who takes an oath with the words “under penalty of perjury” and continues to make false statements is perjury. Thus, everything from false tax returns to lying to a judge is considered perjury and can be prosecuted. Perjury and incitement to perjury is punishable by a fine and / or imprisonment for up to five years under US law.
Where are Trump and Cohen fit?
So Trump forced his lawyer to lie to Congress to cover up the extent of his business ties with Russia. Bingo is incitement to perjury, which is a felony, and felony leads directly to impeachment , right?
Not really. Although Cohen did plead guilty to lying about the Moscow project in November 2018, he was not charged with perjury; his crime was in violation of federal false statements law. There is a small but important difference: perjury is reserved for cases where someone knowingly lies under oath , while federal false statements law applies to anyone who knowingly makes “materially false, bogus or fraudulent statements or representations” in a relationship with the federal government even if the oath was not taken. This means that it is a crime to take the oath or waive the oath, lying in front of a subcommittee of Congress, but since Cohen did not lie under oath, Trump in this particular case was not inclined to perjure.
What happens next?
Whether this week’s exposure will lead to Trump’s bribery accusations of perjury (which almost certainly won’t happen) matters less than the broader implications of his behavior. Telling your personal lawyer to lie to Congress for you is pretty bad, but getting caught is much worse – and almost everyone knows it. House Intelligence Committee Chairman Adam Schiff (D-CA) announced yesterday that his committee will launch its own investigation; Just this week, Attorney General William Barr said that forcing the president to make false statements is considered an obstacle to justice:
Legally, what comes next depends on the different content of emails, texts and memos that federal prosecutors comb through in their investigation of Trump’s ties to Russia. At this point, given what we know about Donald Trump – and that no one in the White House denies it for sure – it seems unlikely that Michael Cohen is the only person he’s forced to lie for himself.