OK, most of the time a witness pretending not to recall something that’s obviously something that any sentient being would be able to recall vividly (recent, spectacular, life-changing, etc.) doesn’t matter much and probably isn’t worth pursuing. But with these massive invocations of memory lapse by Trump’s minions, I wonder how helpless the DoJ is to nail them down.
Couldn’t the prosecutors’ standard gambit of offering immunity establish what went down here? For example (and I’m not advocating this) the DoJ could offer immunity to the lawyer who coached Cassidy Hutchinson to pretend she didn’t recall events that she was protesting she did recall for the purpose of charging with perjury the other clients who maintain they don’t remember him advising them to say that.
I don’t advocate that because it’s the lawyer who committed the greater harm here, not the clients, but it’s a way to prosecute the greater number of lying witnesses. The DoJ could explain to these witnesses’ current lawyers that they are offering immunity to a large number of other witnesses professing not to recall, including the lawyer, and once one of them flips, the immunity offer is no longer on the table and other witnesses are liable for prosecution, so flip now or forever hold your peace.
The DoJ would then be able to prosecute Hutchinson’s original lawyer for suborning perjury but offer him a plea bargain (reduced sentence, etc.) if he testifies as to advising the clients (who have all been deposed saying “Nobody said nuthin’ 'bout pretending not to recall”) that he definitely and clearly advised his clients to pretend not to recall things that they did recall. If nothing else, this gambit would pressure the clients to flip on the lawyer to save themselves.
Or is “suborning perjury” not an indictable charge? Is it just something that is punished by bars revoking law licenses, not by courts?
Does lawyer/client privilege persist regardless of specifics? If I tell my lawyer where I hid the murder weapon and ask him to destroy it, is that felonious conversation private?
Only if the lawyer agrees to it, in which case it becomes conspiracy. Trying to suborn your lawyer may represent an ethical conflict that a would be grounds for the attorney to decline to represent you going forward, and most ethical attorneys would probably do so if a client persists in trying to enjoin their lawyer into a conspiracy or commit criminal fraud on their behalf.
In general, the scope of attorney-client privilege includes all actions pertaining to a past or hypothetical crimes but not to conspiracy or intent to commit a future crime, and in most cases a lawyer is ethically obligated to contact authorities if they legitimately believe their client has willful intent and means to execute a serious criminal act, particular one resulting in injury, death, grand larceny, or arson.
Yes, but don’t you need a bit more than “I suspect they conspired, so I’m going through their communications to find out what” before you get a warrant for that? Lots of things they talked about could be exceptions, but that doesn’t mean the state has the right to examine all communications just in case. What level of information do you need to have to provide a judge to get a warrant?
I’m not sure how a warrant is relevant. In this case, the lawyer wants to testify (and presumably to produce documents). Ordinarily, the client could suppress the lawyer’s testimony and production on the basis of attorney-client privilege. Here, privilege wouldn’t attach the to communication due to the crime-fraud exception. The lawyer can choose to testify or give the prosecution documents. Tell me why you think a warrant is necessary?
The OP asked about granting immunity to get around this sort of problem. My assumption was around getting documents and recordings, rather than the attorney testifying. In the OP, it appears the attorney isn’t interested in testifying.
As a matter of law, are there instances where “I don’t recall” can be dismissed against a reasonable person standard? IOW, it defies reasonable believability for someone to say “gee, I don’t remember that detail” given a certain set of undisputed facts…?
ETA: Not referring to jury situations, where those finders of fact can deem someone as not credible. I mean more instances where it is de facto perjury regarding, for example, sworn testimony to Congress.
I think good followup questions to an answer of “I don’t recall” would be:
“Did anyone coach you to give that answer?”
“Did you get advice from anyone that “I don’t recall” would be a good answer, even if you did recall?”
“Did anyone suggest to you in any way that answering “I don’t recall” would meet with their approval, even if you did recall?”
“Are you lying right now about not recalling?”
IIRC immunity stops 5th amendment claims. You cannot claim 5th amendment protection if there is nothing to be protected against.
But, if you say, “I don’t recall,” there is no fix. Presumably being under oath is what should stop a person from lying. If that person says they do not recall and then write a tell-all book where they remember those things then, presumably, they could be busted for it. But as long as they say they do not recall and never divulge that info later I am not sure there is any legal remedy.
Demonstrating beyond a reasonable doubt that someone perjured themselves in claiming “I don’t recall” is difficult but not impossible. Prosecutors aren’t idiots (mostly), and particularly if they anticipate an “I don’t recall” situation they can frame their line of questioning in such a way as to make the claim very difficult to plausibly maintain. They can also subpoena the witness’s communications and/or introduce any testimony that indicates the witness did recall the events at one time.
Isn’t the problem proving they do not recall “now”?
Sure the lawyers may show the person knew something in the past but that person is saying today, at this moment, they don’t remember. Not sure how you can defeat that.