Opinion

Sorry, But Attorney General William Barr Didn’t Commit Perjury

The world is freaking out over how Attorney General William Barr committed perjury when he told Congress that he didn’t know whether the special counsel agreed with him on the issue of presidential obstruction of justice. Here was the exchange on April 10th before a congressional committee:

Sen. Chris Van Hollen (D-MD): “Did Bob Mueller support your conclusion?”

AG Barr: “I don’t know whether Bob Mueller supported my conclusion.”

As it turns out, Barr quite clearly knew that Mueller did not agree with him regarding obstruction. We now know that Mueller wrote to Barr, criticizing Barr for his inaccuracies and stating that Barr’s statements to to Congress, “did not fully capture the context, nature, and substance,” of Mueller’s conclusions regarding obstruction of justice.

Mueller went on to write:

There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the department appointed the special counsel: to assure full public confidence in the outcome of the investigations.

So it’s pretty clear that what Barr said Mueller found, and what Mueller actually found are two different things. But does that add up to perjury as many have suggested?

The short answer is probably not.

Certainly, it’s more than a little troubling that our attorney general is cool with shamelessly mischaracterizing the findings of such a major investigation. But not every untrue statement constitutes perjury; if they did, we’d need a lot more prisons.

The federal perjury statute is 18 U.S. Code § 1621 – and it says:

Whoever—

(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; or

(2)in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;

is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

Clearly, Barr gave sworn testimony before a competent tribunal authorized to administer an oath. What’s open for discussion is: 1) whether Barr willfully stated anything that he does not believe to be true; and 2) whether, if so, those things count as “any material matter.”

Let’s start with the somewhat simpler “any material matter.” The generally-accepted legal definition of “material” is “relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case.” In the case of Barr’s testimony before Congress, “the case” would probably be some version of the Russian-collusion investigation of President Donald Trump. In that context, Barr’s characterization of Mueller’s report doesn’t really go to the heart of the issue.

If “the case” were ascertaining some level of Trump wrongdoing, what are material are the findings of the Mueller Report itself – and not Barr’s second-hand, predictably spin-doctored version thereof. In fact, whether Barr interpreted the Mueller Report as gospel from on high, or as untrustworthy dreck is unimportant in the calculus of whether Trump committed an offense. Bottom line: what the report says is material. What the AG says it says is only distantly related.

Perjury would also require Barr to have given false testimony “willfully,” meaning that he’d have needed to be aware that he was stating a falsehood. This is where a perjury analysis begins to feel like counting angels on the head of a pin.

Barr testified that he “didn’t know” whether Mueller supported his conclusion on obstruction. While that statement does appear to conflict with what Mueller said (not to mention what Mueller directly told Barr), it’s also part of a far broader conversation between Barr and Mueller on the topic of obstruction.

Remember, in June 2018, Barr sent a nineteen-page memo to Deputy AG Rod Rosenstein and Assistant AG Steve Engel arguing that Robert Mueller’s obstruction theory is “fatally misconceived” and “would do lasting damage to the Presidency and to the administration of law within the Executive branch,” if endorsed by the DOJ. Barr and Mueller have fundamental differences in the way they understand obstruction of justice generally, and even more differences in how they believe obstruction would function with respect to President Trump.

Furthermore,Barr’s “conclusion” could refer to a number of things – including not only whether Trump committed obstruction of justice, but also whether prosecution for obstruction is appropriate. Given the DOJ’s policy against prosecuting a sitting president, it’s arguable that Barr and Mueller actually arrived at the same “conclusion” with respect to obstruction.

Back to the exchange between Barr and Van Hollen.  A general legal rule of evidence is that one person is not qualified to testify as to what another person is thinking; on that front, Van Hollen’s question was flawed right out of the gate – and Barr’s “I don’t know” answer is, from an evidentiary standpoint, was appropriate. While Barr may have been operating with an agenda to spin the Mueller Report as more favorable to Trump than it actually is, simply stating that he “doesn’t know” how Mueller’s conclusions line up with his own could quite convincingly be called a precise answer to an inappropriate question.

Perjury is a difficult crime to prosecute.  While there’s often marked discrepancies between witness testimony and provable fact, it’s the perjurer’s perception of fact that is key. Lack of knowledge, a mistake, difference in interpretation could all be blamed for the intent behind false testimony; whether committed by a sitting attorney general or a jailhouse snitch – perjury is a criminal matter that requires proof beyond a reasonable doubt. Barr’s Congressional testimony may be maddeningly inaccurate, but that doesn’t make it illegal.

[image via Mandel Ngan/AFP/Getty/Images]

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

Elura is a NYC Prosecutor-turned-entrepreneur, who handles TV legal analysis with a sharp tongue and a quick wit. She is a media expert, and has starred in starred in everything from reality television to celebrity gossip panels to national and local news. Elura is a columnist and trial for Law & Crime, an as well as the author of the Legalese-to-English series. Elura is Of Counsel to Smedley & Lis, in Woodbury, New Jersey.

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