Donald Trump's attorneys and the problem of perjury

This post originally appeared in Westlaw Today. 

Donald Trump's attorneys and the problem of perjury

2024 PRINDBRF 0243

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By David Schultz, Esq.

Practitioner Insights Commentaries

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May 08, 2024

(May 08, 2024) - University of Minnesota law professor David Schultz discusses the ethical dilemma Donald Trump's attorneys could face if the former president commits perjury during his New York City hush money business fraud trial.

There will come a point in Donald Trump's New York City hush money business fraud trial where his attorneys have to make two choices. The first is whether to put Donald Trump on the witness stand and to testify. The second choice for his attorneys: What to do if Donald Trump commits perjury? While both of these decisions entail risks, for Trump's attorney the second comes with significant ethical and legal problems.

While Donald Trump can be very persuasive he also distorts the truth. The Washington Post documented more than 30,000 lies or falsehoods1 while he was president of the United States. The Trump Organization was already found liable in 2023 for tax fraud2 in a previous New York court proceeding and earlier this year he was also found liable for fraud and assessed more than $355 million.3

While there may be no or few political repercussions for failure to tell the truth, there certainly is when it comes to testifying in court under oath for any person, including Donald Trump. False testimony is perjury, punishable as a criminal act under New York State law.4 Were he to commit perjury he would face a series of sanctions5 beyond those at issue in his trial.

But for his attorneys, there is a dilemma. What to do if they know he is going to, is likely to, or is committing perjury. What are their duties?

In general, both the American Bar Association's Model Rules of Professional Conduct6 and the New York State Rules of Professional Conduct7 addressed the issue of perjury in rule 3.3. Both make it an ethical violation "to offer or use evidence that the lawyer knows to be false." Rule 3.3 imposes upon attorneys an affirmative obligation to "take reasonable remedial measures, including, if necessary, disclosure to the tribunal" to correct the perjured testimony." Additionally New York State makes subordinating perjury illegal.8

When it comes to a witness that an attorney knows is going to commit perjury, the answer is simple — you do not let the witness testify. If one catches a witness falsely testifying the task of an attorney is to encourage the witness to correct the testimony or to take other appropriate steps to correct that testimony.

Finally, if after a witness testified and the attorney comes to know that the testimony was perjured, there is an affirmative duty by an attorney to correct it.

The problem is different with a criminal defendant. The U.S. Supreme Court has ruled that a criminal defendant has a constitutional right to testify. The question is does the defendant have a constitutional right to falsely testify and potentially commit perjury? The answer according to the Supreme Court9 is yes. But the question is what should an attorney do?

As with witnesses, there are three scenarios.

If attorneys know that their client is going to falsely testify their first duty is to encourage them to tell the truth. But nonetheless, if the client insists on testifying falsely what should the attorney do?

One option suggested by New York State Rules of Professional Conduct and the ABA model rules is for attorneys to use what's called the narrative style. The client is called to the stand, sworn in, and then the attorney simply lets the defendant testify.

Of course, the narrative style sends a clear clue to the prosecution that perjury is being committed. Additionally, New York state rules say in some situations that defense counsel must inform the court prior to defendants testifying that their client may in fact falsely testify. If Trump's attorneys catch him falsely testifying on the stand or know afterwards of false testimony they too must take corrective action. Doing nothing is not an option.

When it comes to Donald Trump's trial, this is going to be a challenge for his attorneys. They are already under significant pressure from the judge to restrain their client and to encourage him to conform to the gag order and not obstruct the court proceeding. Increasingly the fear is that Trump's behavior may be so severe that it forces a mistrial thereby pushing a new trial into the distant future and perhaps beyond the election.

The judge's efforts have been directed mainly at Trump but increasingly the judge is also focusing on the attorneys who are expected to manage their client. There thus may be a point where if Trump decides to take the witness stand and if the attorneys take no action knowing that he is likely to or maybe committing perjury they face disciplinary action under the ethical rules in New York as well as possible prosecution for subordination of false testimony. Their choice then is let Trump testify and risk perjury for their client and risk ethical and criminal sanctions for them.

Notes:

1 https://bit.ly/3QCUFyS

2 https://bit.ly/3JSbXnP

3 https://bit.ly/3UvWu1x

4 N.Y. Penal Law § 210.15 (2022).

5 Id.

6 Model Rules of Pro. Conduct r. 3.3 (Am. Bar Ass'n 2023).

7 N.Y. Rules of Pro. Conduct r. 3.3 (N.Y. State Bar Ass'n 2022).

8 People v. Sadacc, 489 N.Y.S.2d 824 (N.Y. Sup. Ct. 1985).

9 Nix v. Whiteside, 475 U.S. 157 (U.S. 1986).

By David Schultz, Esq.