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Analysis: Is Mueller's potential interview with Trump a 'perjury trap'?

WASHINGTON — The prospect of President Donald Trump being interrogated by special counsel Robert Mueller stirs the imagination. Lots of documents and testimony have already been collected in the inquiry. What if the president contradicts the record or himself?

Mueller has drawn guilty pleas from Trump campaign intimates for making false statements about contacts with Russians. But that approach isn’t easily replicated as Mueller climbs the ladder toward the president.

Bringing a case against Trump — or a member of his inner circle — based solely on misstatements to authorities, without establishing an underlying crime, would almost certainly draw fury from Trump supporters. It would stoke Republican suspicions that Mueller is searching desperately for underlying crimes that never occurred. The president’s allies and even his own lawyer have raised concerns that the special counsel could be setting what they call a perjury trap.

“Mueller can’t afford to do a false statements prosecution” if it’s seen as petty, said Sol Wisenberg, a Washington defense lawyer who investigated former President Bill Clinton as part of Independent Counsel Ken Starr’s legal team. “If it looks like somebody said something wrong and corrects it a while later I think that won’t fly. There has to be some substance to it.”

The White House is negotiating with the special counsel’s office over terms of a possible Trump interview. His lawyers, though not united, have suggested that the president, who is prone to exaggeration and misstatements, shouldn’t agree to a wide-ranging interview, The New York Times reported. One way forward might be for Trump to answer questions with his lawyers present, so he could stop an interview and consult with them before answering.

If there’s no agreement on an interview, Mueller could try to subpoena Trump to appear before a grand jury. That could ignite a potential court showdown over the powers of the special counsel to force testimony from a sitting president. For Trump, the danger is that if he loses he might find himself answering questions under oath before a grand jury without a lawyer by his side, increasing the chances that he might contradict himself or others.

The crime of making false statements — known colloquially among defense lawyers as “1001,” its criminal code number — is a common charge brought in federal investigations, lending credence to the saying that “the cover-up is worse than the crime.” Martha Stewart stands as one of the most famous examples, having been sentenced to five months in prison, five months of home detention and a $30,000 fine for lying to federal authorities who were examining her sale of stock in a friend’s company.

“1001 is a prosecutor’s best friend,” said Michael Koenig, a former Justice Department prosecutor now at Hinckley, Allen & Snyder. “It’s very simple to explain to a jury. Everyone understands lying. It’s not a complicated accounting fraud case where you need to understand nuances of tax law and securities law.”

To investigators, lying suggests there is an underlying — and usually more serious — crime being covered up. Catching someone lying to investigators is also a standard way to squeeze them into a cooperation agreement, Koenig said.

The threat of a jury trial or more charges prompted the guilty pleas from Michael Flynn, Trump’s former national security adviser, and George Papadopoulos, a former campaign aide. Mueller accepted the pleas at an early point in the probe to gain their help in moving deeper into the campaign.

But a misstatement doesn’t always rise to the level of a crime. After all, it’s hard for anyone to keep facts straight about conversations and decisions made months or even years ago. One person’s recollection of events is often at odds with another’s. That can make it risky for prosecutors to bring a case on the strength of false statements alone.

For example, U.S. prosecutors recently decided to drop their case entirely against Sen. Robert Menendez, Democrat of New Jersey, after a judge tossed out other counts and left only those related to gifts and alleged false statements.

Some lawyers have drawn parallels between the Russia inquiry and the special counsel investigation into the unauthorized disclosure of CIA agent Valerie Plame’s name by officials in the George W. Bush administration. Special counsel Patrick Fitzgerald never charged the leaker in the investigation, but he brought a five-count indictment against I. Lewis Scooter Libby, Vice President Dick Cheney’s chief of staff, for lying to investigators and a grand jury.

In announcing the charges against Libby, Fitzgerald pushed back against criticism from Republican circles that Libby was being prosecuted based on technicalities.

“Our jobs — the criminal justice system — is to make sure people tell us the truth,” Fitzgerald told reporters at the time. “And when it’s a high-level official and a very sensitive investigation, it is a very, very serious matter that no one should take lightly.”

The case against Libby began with what he told investigators during an interview and later to a grand jury. He was convicted of making false statements, obstructing justice and perjury.

The Russia investigation could wind up in a similar spot, with cases against individuals for attempting to obstruct the probe proving easier to establish than showing that Trump allies colluded with Russia, said Peter Zeidenberg, who worked as a prosecutor on the Plame investigation.

“You have a cover-up because of what may or may not be illegal,” said Zeidenberg, a partner at Arent Fox LLP.


State-and-regional
Alleged Santa Rosa pimp charged with human trafficking

The man who allegedly ran a prostitution ring with his mother out of their Santa Rosa home for a decade was charged with human trafficking of a minor Tuesday in Sonoma County Superior Court.

An investigation headed by the Rohnert Park Department of Public Safety found that David Scott Romesburg III, 38, and his mother, Fay Ruth Romesburg, 59, allegedly pimped about 150 women over the course of 10 years, said Sgt. Jeff Justice. One woman was allegedly recruited into their prostitution ring while she was still a minor.

The Romesburgs were also set to open a “gaming and karaoke studio” named Black Cat in the coming weeks at a shopping center on Southwest Boulevard at Adrian Drive in Rohnert Park, Justice said. Patrons would have allegedly been paired with women in private karaoke rooms had the business opened.

The gaming element of the business was not slated to be poker or blackjack, but was fantasy role playing, Justice said. Posters at the business advertised a “Magic: The Gathering” card tournament.

Rohnert Park police received a tip from a property manager in late 2017 that the Romesburgs had set up a brothel in an apartment on the 4000 block of Snyder Lane, Justice said. David Scott Romesburg III had signed a six-month lease for the apartment in August.

Rohnert Park detectives found Santa Rosa police also had received complaints about the mother and son pimping women out of their home on the 2300 block of Alvarado Avenue near Doyle Community Park, Justice said.

The Romesburgs ran another brothel in an apartment at the Mountainview Villas near the Santa Rosa Marketplace, he said. It’s unclear if the family operated brothels out of other apartments.

Fay Ruth Romesburg was charged with pimping and pandering in court Tuesday and was held at the Sonoma County Jail on $245,000 bail.

In addition to the human trafficking charge, David Scott Romesburg III was charged with pimping, pandering and five counts of money laundering. He was held on a $250,000 bail.

Criminal protective orders were issued for five women cooperating with the investigation who were allegedly pimped by the mother and son, Chief Deputy District Attorney Brian Staebell said.

Some of the women, whose ages range from 18 to 50 years old, claim they were abused by the son, Justice said. One woman claimed she was sexually assaulted by David Scott Romesburg III during her job interview, another said he would not let her leave the brothel until she paid off a debt to him.

The five women have been connected with support services for victims of human trafficking, he said.

David Scott Romesburg III has two prior convictions in Sonoma County. In 2005 he was sentenced to four years in state prison for having sex with a minor age 16 or under, according to court records. In 2001, he was convicted of contributing to the delinquency of a minor after statutory rape charges were dismissed.

He also has been convicted of arson and burglary in Napa County. Fay Ruth Romesburg has no prior convictions in Sonoma County.

The mother and son were arrested at their Santa Rosa home Jan. 26 during an undercover operation that also targeted the alleged Rohnert Park brothel and the Black Cat studio.