When Do a President's Lies Become Actual Crimes?

Asking for a friend.

Mike Pearl

Mike Pearl

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One of the main themes of former FBI Director James Comey's Senate testimony on Thursday was that Comey, to put it mildly, doesn't trust Donald Trump's honesty. When Trump was president-elect, Comey took to jotting down conversations in detail, because he worried Trump would lie about them later. And it certainly didn't help matters when Trump abruptly fired Comey, citing claims that the FBI was a mess, which Comey called "lies, plain and simple."

Comey's not breaking new ground by impugning Trump's honesty. In fact, Trump has a long history of bending the truth. He pretended to be his own publicist back when he was just a real estate billionaire. He bought into the racist birther movement, claiming Barack Obama wasn't born in the US, eventually becoming the loudest voice making the claim. And back in January, I'm sure you remember his weird insistence without evidence that his inaugural crowd was bigger than Obama's.

Trump's dishonesty is more brazen than that of many politicians, but every president has fibbed, stretched statistics, or broken a promise or two—conservatives will recall Obama's "if you like your healthcare plan you can keep it," named "lie of the year" by Politifact in 2013. But when does a lie become a crime? And has Trump crossed that line yet?

To understand exactly how lies might fit into the ongoing investigation into Russian meddling in the 2016 election and all the mini-scandals it has spawned, I talked to Lisa Kern Griffin, a law professor at Duke University whose most recent scholarly work, according to her Duke bio, focused on "criminalization of dishonesty in legal institutions and the political process, and the impact of popular culture about the criminal justice system." Griffin told me when lying is, and isn't, something you can make a federal case out of.

VICE: Can Trump just lie sometimes if he feels like it? Is that his First Amendment right?
Lisa Kern Griffin: Yes and no. Lying is protected speech unless you're speaking to a federal investigator, or in the context of federal government conduct or activities. It's not entirely protected speech. There is no First Amendment right to lie. That's a common misconception.

Comey said Trump lied, point blank, about his reason for firing him. Could that have legal ramifications?
I think it has legal ramifications that the president said something about something as intangible as the the morale of the FBI, which was then directly controverted both by [acting FBI Director] Andrew McCabe's testimony, and of course by Director Comey's own testimony, as well as some facts that are in the public domain. I think it's a political problem, but that's not the sort of lie that is easy to categorize in legal terms. I don't know that you can lie about good or bad morale.

But would you say there have been lies from Trump that could, in and of themselves, build a legal case against him?
I think because we do not yet have any context in which the president himself has given testimony under oath about any of these matters the real issue with respect to any potential falsehoods, lies, or misstatements that the president has made to the public or to others is about the way in which it fits the narrative of obstruction [rather than] some potentially false statement or lie that would be actionable. [But] those sorts of half-truths, or attempts to obscure things, really speak more to the larger question of whether he tried to obstruct an ongoing investigation, and not more directly to a questions about whether the president has lied in an actionable way.

How does lying turn into obstruction of justice?
I think there's a group of contacts, and statements, and actions that were allegedly intended to stymie the Flynn investigation, and those include potential contact with other members of the government, as well as the things that he said that Director Comey has now testified about under oath.

There is this larger issue of what the president was referring to with the "cloud" of the Russia investigation in general, and then what he was referring to in the statements he made to Russian officials in the Oval Office about having gotten out from under that "cloud."

And then there's the collection of misstatements or untruths connected to the firing of Comey himself. So I actually think there are three categories of obscuring that the president has engaged in, and in some case—before he fired Comey—maybe even attempting to influence Comey in a way that would alter the course of the Flynn investigation itself.

Watch Trump get things wrong in his speech about climate change:

So just now while we were talking, Trump's lawyer told a press conference that Trump "never sought to impede the investigation into attempted Russian interference in the 2016 election." What does that mean when it comes to lies?
Now the game's afoot! Not to be rude, but someone's not telling the truth about that.

Let's say Comey is telling the truth. How can Trump possibly make this claim?
What I think they're doing is splitting hairs. We heard the same thing quite frankly from Admiral [Mike] Rogers and DNI [Dan] Coats [in their congressional testimony on Wednesday], and I think that story has fallen from the headlines extremely quickly. But I think it's incredibly significant that neither of them was prepared to deny that the president had asked them to do something about the investigation, though they insisted that they had not been quote-unquote "directed" to do something.

OK, but in the context of obstruction of justice, how clear do you have to be when you direct someone to do something?
[Obstruction] is an offense about intent. So there is interpretive work to be done about what the president was trying to bring about, and who was implicated in that, and who he talked to about it, and what the mechanisms of it were. Ultimately the debate about whether the president has committed a federal crime is irrelevant because it's a political question about whether or not he's going to be impeached—but what keeps getting lost, I think is that the obstruction statute itself is very broad, and intentionally so.

So the "lie" may come down to two interpretations of a statement: Trump says he never intended to obstruct the investigation. Comey says Trump seemed to be giving him an order. What's the legal takeaway?
In the coming days, what will happen is a big debate about whether the president was musing about some hope or aspiration, or whether he was actually trying to bring about some different course of action.

This conversation has been lightly edited for clarity.

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