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Washington Post / Life - Entertain

Opinion | Hope Hicks isn’t in legal hot water — yet

When it comes to criminal law, all lies are not created equal.

Randall D. Eliason teaches white-collar criminal law at George Washington University Law School.

White House communications director Hope Hicks announced her resignation last week, a day after she reportedly testified before the House Intelligence Committee that she had occasionally told “white lies” for the president. Hicks has also been under scrutiny for her role in an incident last summer aboard Air Force One in which the president was said to have dictated a misleading statement to the media about the infamous June 2016 meeting at Trump Tower between Trump campaign officials and several Russian individuals.

Given that several Trump campaign officials have already pleaded guilty to lying in connection with the Russia investigation, Hicks’s admission to telling “white lies,” and her part in the Air Force One incident, have led to speculation that she too might be in legal jeopardy. But when it comes to criminal law, all lies are not created equal.

The primary federal criminal laws related to lying are perjury and false statements. Of the two, perjury’s scope is narrower because it requires a witness be under oath in a formal setting. For example, perjury would be the relevant statute in any investigation into whether Attorney General Jeff Sessions lied during his sworn testimony to Congress about his contacts with Russian individuals.

White House Communications Director Hope Hicks, one of President Trump's closest aides, is on the way out. Jonathan Capehart discusses the significance of her resignation with Editorial Board chief Fred Hiatt and opinion writers Christine Emba and Molly Roberts. (The Washington Post)

The false-statements statute is much broader. It applies to unsworn oral or written lies in virtually any matter within the jurisdiction of the federal government. Former national security adviser Michael Flynn and campaign adviser George Papadopoulos pleaded guilty to making false statements for lying to the FBI during interviews in which they were not under oath. False statements also applies to written lies to the government, and, as an example, would be the relevant statute in any investigation into whether Trump officials such as Jared Kushner intentionally omitted Russian contacts while completing applications for a security clearance.

So where do Hicks and her white lies fit in? It does not appear those statements were under oath, so perjury is not an issue. In addition, both false statements and perjury require that the lie be material, which means it has at least the potential to influence the body to which the statement is made. Criminal law does not concern itself with lies about trivialities.

A white lie is generally defined as a harmless or trivial falsehood. If the only lies Hicks ever told on President Trump’s behalf were truly white lies, they likely would be considered immaterial and, therefore, not criminal — though making that determination would require examining the facts and the context surrounding each statement.

Even if some of the lies were material, the false-statements statute also requires that the statement be made to the federal government. It is generally not a crime to lie to the public, the media or your neighbor. The lie must be directed at the federal government in connection with a particular federal matter or proceeding.

If the lies Hicks told were only to the press corps, those alone are not going to put her in legal jeopardy. Similarly, the Air Force One statement is likely not criminal, in and of itself. Lying to the press or the public might create political problems, but generally not criminal ones.

That doesn’t mean Hicks is in the clear, though. The Air Force One incident, for example, is potentially important, not as a stand-alone crime, but as one piece of evidence in a broader obstruction of justice probe. Prosecutors appear to be examining whether Trump and others may have tried to block or hamper the Russia investigation. Any such lies, even if not directed at the government, are potentially relevant to proving a corrupt intent to throw off investigators and hide the truth. Because lies suggest a guilty state of mind, they can be invaluable when trying to prove corrupt intent. Hicks’s reported statement (which she has denied) that Donald Trump Jr.’s emails concerning the true reason for the Russian meeting would “never get out,” if it happened, would be additional potential evidence of obstruction.

In a potentially ominous sign for Hicks, a just-disclosed subpoena from special counsel Robert S. Mueller III requires former Trump campaign aide Sam Nunberg to produce any documents related to nine different Trump associates — including Hicks. Presumably, others have received a similar subpoena. It seems clear that Mueller considers Hicks to be a person of interest.

If all Hicks did was tell reporters the president was working when he was actually golfing, that’s not going to get her indicted. But if Mueller uncovers evidence implicating her in a conspiracy to obstruct justice, then “white lies” will be the least of her concerns.

The writer teaches white-collar criminal law at George Washington University Law School.

Read more on this issue:

The Post’s View: Hope Hicks’s resignation caused a stir. But what she did first is more important.

Erik Wemple: Why did the Hill scrub a column about Hope Hicks?

Jennifer Rubin: When you lose Hope Hicks . . .

Dana Milbank: Hope Hicks told the truth about lying for Trump. Now she’s gone.