While the mainstream press, including The New York Times and The Washington Post, has generally done an outstanding job exposing the steady stream of lies coming out of the White House as well as reporting both on Russian interference with the last presidential election and Robert Mueller's investigation into whether the Trump campaign colluded with Russia in such interference, it has, in at least one respect, let the public down. Notwithstanding the recent statement of Times publisher A.G. Sulzberger that “[we] will continue to infuse our journalism with expertise by having lawyers cover law,” his paper and other media outlets continue to have non-lawyers reporting on legal matters and to make significant mistakes when they do. Two recent examples illustrate the point.

On January 16, in an article entitled “Bannon Is Subpoenaed in Mueller's Russia Investigation,” the Times reported that “[p]rosecutors generally prefer to interview witnesses before a grand jury when they believe they have information that the witnesses do not know or when they think they might catch the witnesses in a lie.” In fact, nothing could be further from the truth.

If a prosecutor is hoping a witness may cooperate, the last thing he or she would want to do in the first instance is to question the witness before the grand jury with the expectation that he/she will lie under oath. If the witness does lie, but ultimately agrees to tell the truth and cooperate, the prosecutor would have to turn over the perjurious testimony to counsel representing any defendant in a case where the Government called the witness to testify. The statement could then be used by defense counsel to undermine the witness's credibility during cross-examination, so that counsel could ultimately argue to the jury in summation that the witness should not be believed because he/she has already lied under oath. Further, before calling the witness in a criminal trial, the prosecutor, as part of the witness's cooperation agreement, would either have to insist on a guilty plea to a perjury count from the witness (in addition to anything else the witness may have to plead guilty to) or explicitly forgo a perjury prosecution; either of these options would provide more fodder for ultimate cross-examination of the witness.

Accordingly, if a prosecutor is looking at a grand jury witness as a potential trial witness down the road, he or she almost invariably seeks to question the witness informally first during what is called a “proffer session.” These sessions generally occur at the prosecutor's office. Counsel for the witness is generally present. Notes are generally taken, but the session is usually not transcribed and the witness is not under oath. If the witness ultimately testifies in a trial for the Government, the notes of the proffer session must be turned over to defense counsel. But even assuming the witness lies initially at the proffer session (which often occurs) and then comes clean, as a practical matter it is far more difficult for a defense attorney to cross-examine a witness with notes from a proffer session than it is to cross-examine him or her with the witness's own sworn testimony before the grand jury. And cross-examination about a conviction for making a false statement to the prosecutor during a proffer session—a violation of Title 18, United States Code, §1001—has much less force than cross-examination about a perjury conviction owing to swearing falsely before the grand jury.

Beyond all of the tactical considerations set forth above, there is a compelling legal reason that prosecutors have for not calling a witness before the grand jury when the witness is expected to lie. It is settled law that when the Government calls a witness before the grand jury for the primary purpose of obtaining testimony from him/her in order to prosecute him/her later for perjury, it creates what is called a “perjury trap,” which will lead inevitably to the dismissal of any indictment for perjury based on the false grand jury testimony. Prosecutors, for obvious reasons, seek to avoid even being accused of having created a perjury trap.

Hence, Bannon was likely subpoenaed to appear before the grand jury because he resisted attempts by Mueller's staff to interview him informally or because he insisted on a subpoena so that he could tell the outside world—for the moment at least—that he is not a “rat” (i.e., a cooperating witness) and that he is being compelled to testify (as the Times article stated). But in either event, Mueller almost certainly wanted to interview Bannon informally in the first instance. And, of course, within days of the news article above it was widely reported that Bannon had in fact agreed to an informal interview with Mueller prior to any grand jury appearance.

On January 31, in an article entitled “Mueller Zeros In on Story Put Together About Trump Tower Meeting”—regarding Mueller's attempts to question witnesses about the press release Trump drafted aboard Air Force One last July to address his son Donald's participation in the now infamous meeting with the Russian lawyer et al.—the Times reported that “[s]ome lawyers and witnesses who have sat in or been briefed on the interviews have puzzled over Mr. Mueller's interest in the episode. Lying to federal investigators is a crime; lying to the news media is not. For that reason, some of Mr. Trump's advisers argue that Mr. Mueller has no grounds to ask the president about the statement and say he should refuse to discuss it.” Nowhere in the article did the Times report why Mueller's questioning of witnesses about Trump's role in the drafting of the press release was entirely lawful. Here's why it was:

First, in addition to investigating “collusion,” Mueller is investigating obstruction of justice and conspiracy to obstruct justice. In order to violate the conspiracy statute—Title 18, United States Code, §371—two or more persons must enter into an agreement to violate a criminal statute (here, one of several federal obstruction of justice statutes) and at least one of them must commit at least one act in furtherance of that illegal agreement. The act in furtherance of the illegal agreement that the prosecution must prove in a conspiracy case need not be a crime in and of itself (e.g., buying a stocking mask is not a crime, but evidence that an alleged conspirator bought one could easily fulfill the overt act requirement in a conspiracy to commit bank robbery case). Thus, Trump's creation of a false press release could be an act in furtherance of an obstruction conspiracy even though it may not constitute a crime standing alone, and Mueller would clearly have been justified in questioning witnesses about it. Second, Trump's creation of a false press release may shed light on his motive and intent in taking other actions which arguably, at least, amount to obstruction (e.g., urging Comey to drop the investigation of Flynn), and thus would clearly have been relevant to Mueller's investigation for that reason as well.

Were Trump a witness before the Grand Jury and were he to refuse to answer questions about his role in drafting the press release on the grounds that such questions were not legally relevant because the writing and distribution of a false press release is not a crime in and of itself, his and his lawyers' arguments in this regard would be summarily rejected by any court.

The mistakes or omissions in the reportage recounted above are not without import. In the former instance, the Times article made it appear that Mueller, in issuing a grand jury subpoena to Bannon, was trying to catch him in a lie before the grand jury, when Mueller, like any other prosecutor worth his salt, wanted just the opposite, that is, for Bannon to testify truthfully. In the latter instance, the Times article made it appear that Mueller, when questioning witnesses about Trump's role in the drafting of the press release in question, was engaged in an unlawful fishing expedition without his jurisdiction when, in fact, the questioning was entirely appropriate. Both articles then—probably inadvertently—were implicitly critical of Mueller, or, at the very least, could be read as such.

What to do to remedy shortcomings in legal reporting such as these? Having lawyers report on grand jury investigations and other matters of legal import would be nice, but is hardly always practical and not a complete solution in any event. Getting legal reporting right requires an in-depth knowledge of the area of law at issue, something reporters, even those who are lawyers, seldom have or can be expected to have. A better solution would be for journalists to consult with lawyers who have such expertise before putting out news stories that address legal issues. Doing so will make for more accurate reporting and will ultimately result in a public that is better informed about such critical issues as Mueller's investigation and other matters of legal consequence in Washington and elsewhere.

Elliott B. Jacobson was an Assistant District Attorney in New York County from 1980 to 1985 and an Assistant United States Attorney for the Southern District of New York from 1985 to 2017.