Donald Trump Jr.’s forthcoming appearance before the Senate Intelligence Committee and the House Judiciary Committee’s subpoena of Hope Hicks reminds us that we are well into the next season of “Real Witnesses of Capitol Hill.” As before, those who try to conceal as much as possible will confront Democrats who try to uncover as much as possible. These reluctant witnesses, perhaps taking a cue from Attorney General William Barr’s April 9 testimony before a House committee, may think that so long as their testimony is literally true, it cannot be a lie. That would be a clear mistake.
We know from daily life that a literally true statement can be a lie. Imagine that, before he goes to bed, you ask your teenager “did you do your homework?” and he says yes. You then learn that he did not. You would say he lied. But if he is an aspiring lawyer, he might blame it on your question. “You didn’t say which day’s homework you meant. I did do last week’s homework so my answer is literally true. If you meant did I do today’s homework, you should have been explicit.”
Are you persuaded? Of course not. Barr’s testimony poses the same question. Let’s go to the transcript.
On April 9, Rep. Charlie Crist asked Barr if he knew why “members of the Special Counsel’s team” were publicly reported to be saying that Barr’s March 24 summary of Robert Mueller’s report “does not adequately or accurately, necessarily, portray the report’s findings.” Barr replied in part, “No, I don’t.” We later learned that in a March 27 letter Mueller had complained to Barr that the March 24 summary “did not fully capture the context, nature, and substance of this Office’s work and conclusions…. There is now public confusion about critical aspects of the results of our investigation.” Mueller used the plural: “We communicated that concern to the Department,” he told Barr. “We” includes his “team.” Yet Barr did not disclose the Mueller letter in his answer to Crist.
So was Barr’s answer a lie or merely incomplete? Barr has relied in part on the fact that Crist asked about complaints from “members of the Special Counsel’s team,” while the complaint Barr had earlier received was from Mueller himself, not his team. “I talked directly to Bob Mueller, not members of his team,” he told a skeptical Senator Patrick Leahy on May 1. In other words, Crist should have been more specific. To some lawyers, Barr’s answer might make perfect sense. A statement cannot be a lie if it is literally true.
But courts don’t agree. Just as in daily life, judges say that a literally true answer can nevertheless be false if the witness knows what the questioner is getting at and intends to mislead by exploiting an imprecise question.
For example, in 1998, a defendant convicted of perjury argued on appeal that he could not be guilty because his answers to deposition questions were literally true. In United States v. DeZarn, an influential opinion affirming the conviction, Judge Gerald Rosen wrote for the Sixth Circuit that “even if the questioning was not perfectly precise,” the defendant “knew exactly” what the questioner had in mind. “A perjury inquiry which focuses only upon the precision of the question and ignores what the defendant knew about the subject matter of the question at the time it was asked misses the very point of perjury: that is, the defendant’s intent to testify falsely and, thereby, mislead his interrogators.” To underscore the importance of this ruling, Judge Rosen then added that a different result “would not only undermine the perjury laws, it would undermine the rule of law as a whole.”
This past January, the Third Circuit, citing DeZarn and other precedent, wrote in United States v. Hird that “a perjury conviction is [proved] when the defendant’s testimony can reasonably be inferred to be knowingly untruthful and intentionally misleading, even though the specific question to which the response is given may itself be imprecise.” (Internal quotes omitted and emphasis added.)
Bill Clinton famously argued that he did not lie at his deposition when he denied ever having had sex or being alone in a room with Monica Lewinsky. Clinton proposed definitions of “sex” and “alone” that, he argued, would make his answers true. In imposing sanctions against him, Judge Susan Weber Wright wrote:
Simply put, the President’s deposition testimony regarding whether he had ever been alone with Ms. Lewinsky was intentionally false, and his statements regarding whether he had ever engaged in sexual relations with Ms. Lewinsky likewise were intentionally false, notwithstanding tortured definitions and interpretations of the term “sexual relations.”
The view that literally true testimony cannot be false is particularly intolerable for an attorney general in his testimony before Congress. Barr surely knew what Crist wanted to know. Rather than disclose the Mueller letter, he took advantage of the fact that Crist’s question could have been more precise. The law would call Barr’s answer a lie, and a lie to Congress, whether or not under oath, is a crime. At least two statutes apply. One makes it a felony if a person “conceals…or covers up… a material fact,” including in congressional testimony. The other makes it a felony if a person “obstructs…or impedes any official proceeding,” which includes “a proceeding before Congress.”
Let Barr’s example serve as a cautionary lesson for this season of congressional investigations of the Trump administration and campaign.
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