As a lawyer, I know the hard truth about that Ivanka perjury story

The waves of schadenfreude were almost visible when David Korn broke a story in Mother Jones that Ivanka Trump may not have been truthful in her deposition last December in the District of Columbia Attorney General’s lawsuit regarding the enormous family slush fund that was the Trump Inauguration Committee. The suit alleges “that the Inaugural Committee, a nonprofit corporation, coordinated with the Trump family to grossly overpay for event space in the Trump International Hotel.”

When asked whether she had “involvement in the process of planning the inauguration,” Ivanka Trump replied, “I really didn’t have an involvement.” She added that if her “opinion was solicited” regarding an inauguration event, she “would give feedback to my father or to anyone who asked my perspective or opinion.”

Yet emails and other documents showed that Ivanka was actively involved in numerous inauguration events, including multiple meetings and extensive communications with Stephanie Winston Wolkoff, the inauguration organizer and author of a tell-all book about her ex-best friend Melania Trump. Rick Gates, the deputy chairman of the Inauguration Committee and later convicted felon and star witness against his former mentor Paul Manafort, wrote to Ivanka on November 29, 2016 and said Winston Wolkoff would be calling her about various events “based on our meetings.” “Great,” replied Ivanka. A meeting was held a few days later, followed by a long email to Jared and Ivanka from Winston Wolkoff, with a report on the various events and the “overarching strategic objective” of “reinforcing the theme ‘With the People: Making America Great.’” This included inviting “Families from all 50 states and providing Airfare. Accommodations. Hair & makeup.” One presumes only the ladies were getting the “Hair & makeup.”

Ivanka’s communications about the inauguration continued all through December and January. Winston Wolkoff asked Ivanka to host a “Women’s Entrepreneurs Reception/Dinner” and asked for a guest list. Although Jared replied that this “looks like it’s going to be a special event,” Ivanka was a tougher customer, indicating that her interest in hosting “depends on the quality and theme of the event.” Presumably, the requisite quality and theme was not achieved, as the event did not happen.

Ivanka also intervened when it became clear that there would be no “A-list entertainers” at the inauguration and had approval authority on the inaugural dinner memos. Indeed, she attended a major meeting at Trump Tower with a “run-through of the entire inauguration,” including slides on events, the communications strategy, and branding.

On its face, Ivanka’s testimony is plainly inconsistent with the surfeit of documents that show her active and continuous involvement in Inauguration Committee activities. Any competent lawyer would have reviewed these communications with his client before the deposition to have prevented Ivanka from stepping into this sinkhole. Either she was not adequately prepared or she knew about the documentary trail but nevertheless chose to try to wriggle out of responsibility for the Inauguration Committee dumpster fire in the face of evidence to the contrary.

Much of the media and Twittersphere are already fitting Ivanka for her Orange Is the New Black jumpsuit. Vanity Fair Hive headlined its report on Korn’s story “IT SURE SOUNDS LIKE IVANKA TRUMP LIED UNDER OATH TO CRIMINAL INVESTIGATORS,” adding the snarky subhead: “The inability to tell the truth appears to be an inherited trait.” Business Insider quotes MSNBC’s resident ex-FBI official, Frank Figliuzzi, as stating Ivanka “may have perjured herself.” YouTuber Christo Aivalis said Ivanka “almost certainly lied under oath,” while Queerty asked, “Did Ivanka Trump accidentally on purpose commit perjury? It sure looks like it.”

I hate to be the lawyer who pours cold water on the Ivanka perjury inferno. Perjury in Washington DC requires proof beyond a reasonable doubt that the defendant testified falsely under oath and made a statement that was false, and that the defendant knew the statement was false when made. Perjury cases are fairly rare and are almost never brought based on deposition testimony in a civil case, where, sadly, witnesses lie all the time. This case is unlikely to be an exception.

First, perjury cases are notoriously difficult to prove because a prosecutor needs to convince a jury beyond a reasonable doubt not only that the statements were false, but that the witness knew they were false when made. Witnesses can always argue that this was their best recollection of the events at issue. These were events that occurred more than four and a half years ago. It is very hard to secure a conviction for failing to recall meetings or emails that far in the past. Jurors know that it is often hard to recall what happened yesterday, let alone in 2016.

Second, the falsehood needs to be unambiguous. Here, Ivanka did not unequivocally deny that she had anything to do with the inauguration. She conceded that she “would give feedback” to her father or “anyone who asked.” Whether her conduct was proactive or reactive is not the stuff on which a reasonable prosecutor would bring a perjury prosecution, especially in these circumstances.

Did Ivanka fail to tell the truth? It is certainly a reasonable inference. But this happens all the time in litigation. It almost never results in criminal prosecution.

The Trump family is by no means out of the woods on a host of issues under investigation. But don’t look for Ivanka to be charged with perjury.

Eric Lewis is a human rights lawyer living and working in New York City. He also sits on the board of The Independent.