Perjury, Circa 1999, Apropos of Nothing; or, New Democratic Talking Points

(Greetings readers from ... everywhere.  I'm upset, you're upset, but there are ways to cheer yourself up.)

"Shame at the White House," New York Times (12 September 1998):

The essence of Mr. Starr's case is that lying under oath is an impeachable offense even if the false testimony begins in a civil suit that was later dismissed or took place in a grand jury as an attempt to hide an embarrassing indiscretion. Mr. Starr's view holds that in a society founded on the rule of law, false swearing or witness tampering, abuse of office or obstruction of justice by the person vested with the highest legal powers is impermissible no matter how petty the subject.

Robert Bork & James Rosen, "The Clinton Meltdown," National Review (12 October 1998):

In that contention he has considerable support, not only from the aforementioned Miss Dowd but from many others, including, surprisingly, William Safire, who says, "If forthrightly confessed, perjury about workplace dalliance should not be enough to force out a President." In the light of the Starr Report's footnotes, calling what took place in the Oval Office "dalliance" falls just short of calling World War II a "dustup." The idea seems to be that perjury about sex is not as serious as perjury about other matters. That won't wash.

Lying under oath strikes at the heart of our system of justice and the rule of law. It does not matter in the least what the perjury is about. The proceedings of a court or a grand jury take place because we have enacted laws that we want to see enforced, and we want them enforced on the basis of truth, not fiction. We do not say that we care about truth when the subject is murder or drug pushing but care very little when the subject is the sexual harassment of a subordinate or tampering with witnesses to hide adultery. That the amount of lying at trials is reaching epidemic proportions is a matter not for acceptance but for condemnation.

Cal Thomas, "Burton Soars Over Clinton in Integrity," Los Angeles Times, (9 September 1998):

Had Bill Clinton "merely" had a sexual encounter with Monica Lewinsky in the White House, it would still have been outrageous. He still would have hurt his family. The office of the presidency would still have been sullied. But he would not have committed a potentially impeachable offense. His fate would have been left to the opinion polls and historians. But he lied about his affair under oath. And the forthcoming report by the Office of the Independent Counsel is likely to present evidence that he caused others to lie and tried to keep authorities from learning the truth.

Robert Blecker, "How Does Congress Define 'Perjury'?" Wall Street Journal (9 December 1998):

"Because we believe that the crime of perjury depends not only upon the clarity of the questioning itself, but also upon the knowledge and reasonable understanding of the testifier as to what is meant by the questioning," the Sixth Circuit declared, "we hold that a defendant may be found guilty of perjury if a jury could find beyond a reasonable doubt from the evidence presented that the defendant knew what the question meant and gave knowingly untruthful and materially misleading answers in response."

Whatever else it does, Congress should sweep away this mess by enacting a law clarifying the meaning of perjury: "A person commits perjury who intentionally makes a materially false statement under oath. A person who gives an answer not literally false but consciously calculated to create a materially false impression when considered in the context in which it was given, also commits perjury."

William Glaberson, "Testing of a President: Legal Issues," New York Times (18 November 1998):

Defenders of President Clinton have argued that his accusers are overzealous in saying he should be impeached or subject to criminal charges on the grounds that he committed perjury when he denied in a civil deposition that he had a sexual relationship with Monica S. Lewinsky.

But a review of more than 100 perjury cases in state and Federal courts and statistics on the perjury prosecutions brought around the country show that people are prosecuted for what might be called small lies more regularly than the Clinton defenders have suggested.

Eric Schmitt, "Consequences of Perjury Debated in the House," New York Times (2 December 1998):

In a highly partisan hearing that featured a parade of witnesses, from convicted perjurers to Federal judges to a decorated Army general who has retired, Republicans tried to underscore perjury's harmful effects on the nation's justice system.

''If citizens are allowed to lie with impunity -- or encourage others to tell false stories or hide evidence -- judges and juries cannot reach just results,'' said Representative Henry J. Hyde of Illinois, the committee chairman.

''At that point, the courtroom becomes an arena for artful liars and the jury a mere focus group choosing between alternative fictions,'' Mr. Hyde said.

William Bennett, "What We Know," Wall Street Journal (10 November 1998):

And we know that when a person testifies under oath that he doesn't remember something when in fact he does, he has committed perjury.

Defenders of the president insist this as an impeachment about illicit sex even though none of the articles of impeachment are about sexual behavior. And so the question the House Judiciary Committee must decide during the next month is the same one that faced the committee a quarter-century ago, when it considered whether to impeach Richard Nixon: Will it reaffirm the time-honored American ideal that no man is above the law? If committee members answer yes, there is only one principled way for them to conclude this inquiry: the impeachment of the president.

Gary McDowell, "Rule of Law," Wall Street Journal (30 August 1999):

Perjury to cover embarrassing personal behavior is still perjury; and such perjury is sufficiently serious a federal crime for Sen. Herbert Kohl to have argued that the president could still be "criminally prosecuted, especially once he leaves office." In Sen. Kohl's view, "his acts may not be 'removable' wrongs, but they could be `convictable' crimes."

[Clinton] is a public official and the sentencing guidelines are less charitable in those cases: "If the defendant abused a position of public or private trust . . . in a manner that significantly facilitated the commission or concealment of the offense, increase [the punishment] by 2 levels." It would not be surprising to find a judge inclined to throw the book at the president, as Judge Wright put it, "not only to redress the President's misconduct, but to deter others who might themselves consider emulating the President of the United States by engaging in misconduct that undermines the integrity of the judicial system."

Richard Serrano & Robert Jackson, "Judge Finds Clinton in Contempt in Jones Case," Los Angeles Times (13 April 1999):

Jim Nicholson, Republican National Committee chairman, added that "Judge Wright's decision is a long-overdue victory for the rule of law."

Several legal experts agreed.

"The judge had no choice but to send a message that future witnesses who are less than truthful won't be tolerated," said Steven Saltzburg, George Washington University law professor and a former high-ranking Justice Department official under Presidents Reagan and Bush.

"I wouldn't have been surprised if the sanctions were a hundred times higher," he said.

Stephen Gillers, a law professor at New York University, added:

"Any lawyer who testifies falsely before a federal judge has to expect a severe sanction, including possible loss of his license to practice law. If anything, a judge should take more severe action when that lawyer is the president of the United States."

Roger Kimball, "Leftists Sacrifice Truth on the Altar of Friendship," Wall Street Journal (22 February 1999):

It is said that truth is one of the first casualties of war. In the culture wars that have been transforming American society since the 1960s, truth has been a conspicuous casualty: not only particular truths but also allegiance to the very ideal of truth as an indispensable component of any just and moral life. The competing, countercultural ideal holds that loyalty to the personal trumps loyalty to the truth -- a view that made it difficult for many people to appreciate the gravity of the charges against Mr. Clinton. So what if he lied under oath? It was only about a personal matter.

The novelist E.M. Forster gave classic expression to this pernicious attitude. In an essay called "What I Believe," Forster famously wrote that "I hate the idea of causes, and if I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country." Forster wrote this in 1939, when for an Englishman there was no more thorough way of betraying one's friends than by betraying one's country. Predictably, his selfish and self-absorbed ideas about loyalty made a great hit with the left-wing, Bloomsburyish intelligentsia of his time. They have exerted equal fascination for the heirs of Bloomsbury in our own day.

Ronald Ostrow, "'No One Is Above the Law,' Starr Reminds Bar Group," Los Angeles Times (2 May 1999):

"A grand jury's job is not complete until it has, to the best of its ability, run down every lead and heard from every witness," Starr said. "As the Supreme Court said in U.S. vs. Nixon {the 1974 Watergate tapes case}, 'the public . . . has a right to every man's evidence, except for those persons protected by a constitutional, common-law or statutory privilege.' "

". . . These exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth," the Supreme Court said.

Starr again cited the court's word: "The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the judicial branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article 3" of the Constitution.

Robert Bork, reviewing Ann Coulter's High Crimes and Misdemeanors, Wall Street Journal (3 September 1998):

The president's defenders, experts at changing the subject, prefer to debate whether Mr. Clinton committed a felony. Though it is clear that the president repeatedly lied under oath in Paula Jones's lawsuit, they offer arcane disputes about whether that was technically perjury. I think it was perjury, but that is not the point. As Ms. Coulter reminds us, the Rodino Committee staff, gearing up for Richard Nixon, concluded, correctly, that "high crimes and misdemeanors" are not limited to actions that are crimes under federal law. (It is a minor irony of history that Bernard Nussbaum, later Clinton's White House counsel, and Hillary Rodham collaborated on a report that makes these points.) When the man charged by the Constitution to "take Care that the Laws be faithfully executed" lies under oath in a federal case and knowingly watches Monica Lewinsky lie in the same case, he has clearly subverted a central constitutional duty.

That alone is amply sufficient for impeachment. While impeachment is not to be undertaken lightly, it is also not to be avoided at the cost of sanctioning such behavior. Ms. Coulter tellingly relies on James Madison: "The `first aim' of the Constitution," she writes, quoting him, "was to ensure that men with the `most virtue' would become the nation's rulers. The Constitution's impeachment power was for `keeping them virtuous whilst they continue to hold their public trust.'"

Paul Simon, "Is It Only About Sex?" New York Times (21 August 1998):

A prosecutor does not create the setting underlying a perjury and obstruction of justice investigation. Others do. Here, whether there was a sexual relationship has never itself been worthy of investigation. But neither the criminal investigators nor Congress can draw conclusions as to whether the President lied under oath, obstructed justice or abused the power of the Presidency, without also considering the events that are the subject of the possible perjury and the motivation for possible obstruction of justice and abuse of power.

We are on a sad and fateful course that cannot be trivialized by the false belief it is all about sex. The fact and nature of the sexual relationship are for the individuals and families involved, the voters and perhaps Congress to consider.

Mr. Starr's investigation, as well as the core of any Congressional proceedings, properly focus on important questions of perjury, obstruction of justice and abuse of power.

Richard Serrano, "Starr's Report Charges That Clinton Abused Powers, Obstructed Justice," Los Angeles Times (12 September 1998):

"Perjury and acts that obstruct justice by any citizen . . . are profoundly serious matters," he said in the report. "When such acts are committed by the president of the United States, we believe those acts may constitute grounds for an impeachment."

Comments

[bitchphd]

Since you're wasting time anyway, why don't you find some YouTube video of Bush saying that if anyone in the white house was involved in the leak, he wouldn't stand for it?

[SEK]

I'm not wasting time, I'm venting the only way I know how: research.

[Rich Puchalsky]

All those words, Scott. When all one needs to say in response is IOKIYAR.

At this point, anything that makes people distrust the American justice system even more is good.

[Ahistoricality]

Am I the only one who thinks that Bush has finally revealed his lame-duck status to the world with this commutation? Clearly what he really wanted to do was pardon, but wasn't willing to take the political heat; but he couldn't disappoint his supporters, either, so he caved in both directions simultaneously producing a result which neither side will consider just or righteous.

He's toast. Politically speaking, that is.

[SEK]

But if I'd said "IOKIYAR," Rich, I wouldn't have known what I'd meant. (Only now would I.)

[SEK]

No, ahistoricality, you're not.

[McGehee]

"Clearly what he really wanted to do was pardon..."

But what would Libby want, if he really believed he were innocent of the charges of which he was convicted? It seems quaint in this day and age, but it's entirely possible the man wants to clear his name in court rather than by executive fiat.

[Rich Puchalsky]

Well, you could have gone for "Perjury: IOKIYAR".

Not that I'm criticizing anyone's means of venting. People vent as they like to vent.

[Wax Banks]

If only we concerned leftish types had blogged more, THIS WOULD NEVER HAVE HAPPENED.

[Rich Puchalsky]

I thought something was wrong with ahistoricality's analysis, but couldn't say what. After all, Bush's whole strategy since 2004 was to govern as a lame duck that needed no cooperation from anyone in order to carry out his core projects -- why would he care now? But that doesn't explain why he wouldn't give a full pardon. Reading around the blogs, however, I've seen it said that since Libby still has an appeal and so on coming up, he still gets to take the 5th in Congressional testimony, which wouldn't be true if he were pardoned.

[SEK]

Reading around the blogs, however, I've seen it said that since Libby still has an appeal and so on coming up, he still gets to take the 5th in Congressional testimony, which wouldn't be true if he were pardoned.

Dick and Libby'll be contesting what "is" is any day now, only about matters of national security instead of hummers. As you can tell, at this point I'm Photoshop angry, and wish I had an outlet more productive than irate voicemails, impassioned emails, and my large-for-a-blog-but-microscopic-for-a-constituency audience.

[Ahistoricality]

Rich, That would almost explain the tortured logic of the decision, and the half-assed nature of the commutation would be in keeping with the half-assed way this administration approaches everything important, but the idea that he's keeping the charges alive for some kind of cover down the road? I don't know that I'm willing to buy the idea that this administration is capable of a bank shot like that.

[Rich Puchalsky]

I don't know, ahistoricality. It does protect Libby against Congressional testimony (unless perhaps they give him immunity first? that might shoot down the whole idea) and it does seem like the kind of thing they'd think is clever. It's so difficult to know with them what's an evil plan (that turns out to be incompetent) and what's just incompetence (that turns out to have an evil effect).

[CR]

And, according to something that Delong posted, Bush and Cheney now can continue to "refuse to comment on an ongoing legal issue," as Libby will appeal in order to "clear his name." If he had been pardoned, then there'd be no reason to appeal, therefore less of a reason for them not to talk...

They're really, really good at this, aren't they?

[Ahistoricality]

I don't really see why a pardon on the perjury/obstruction charge would keep Libby from invoking the fifth amendment in regard to questions about anything else: in other words, the pardon doesn't have to be a slate-cleaner, like Nixon's; in fact, if it were, that would be tantamount to admitting that something illegal had happened in the leaking of Plame's cover, which they'd never do. If you read the President's statement on the commutation, he recites the right-wing talking-point (by citing right-wing talking-heads, which is cute) about Libby "not being charged with an underlying crime."

As an aside: does the president's statement remind you of a sophomore-level ethics essay, or what?

[Rich Puchalsky]

I think that the DeLong post that CR points to is somewhat convincing, but I most definitely disagree with CR's "they're really, really good at this". Being good at politics means succeeding. Unless anyone can make a convincing case that Bush e.g. is seriously devoting 8 years to trying to discredit the government in an ideal sense, then it's clear that he is unsuccessful -- both in terms of carrying out his apparent goals and in terms of changing public support for them long-term. All he's succeeded in so far is doing various kinds of damage: to the world, to the country, to his own political party, to vast numbers of Iraqis etc.

And this kind of commutation-not-pardon tactic is the kind of thing that, as I wrote before, the Rove crew thinks is clever. Things that you think are clever (in this sense) almost never turn out to work as effective politics.

However, there is a sense in which I suppose that CR could be right. If Bush isn't being evaluated as a politician, but as a criminal, he is pretty good at criminality. His one outstanding success has been in lining the pockets of his cronies, with minimal jail time.

[John Krogstad]

List of Clinton's Pardons

http://www.usdoj.gov/pardon/clintonpardon_grants.htm

[Luther Blissett]

Not to defend the Scoot-Dogg, but the central point of debate -- which was never up for debate with Seegar Bill -- is whether I. Scoot actually lied. He maintains, and the *National Review* crew maintain with him, that he simply didn't remember accurately.

[GDM]

As to ahistoricality's question about pardons and the Fifth Amendment privilege against self-incrimination, the answer is that a pardon is indeed a clean slate. As the US Supreme Court wrote in 1896, "if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed." Brown v. Walker, 161 U.S. 591, 599 (1896). In other words, a pardon precludes any possibility of self-incrimination because it negates the offense entirely. A grant of immunity to prosecution essentially works the same way--if a person cannot be prosecuted for an offense, she cannot have any fear of self-incrimination.

I would imagine that keeping Libby's right against self-incrimination intact here would be based on an argument that he is appealing his conviction, which could lead to a new trial in the future should he succeed in his appeal. If Libby might possibly be re-tried, he would have a valid (in a legal sense) privilege from testifying based on the Fifth Amendment. Granting a pardon at this point would moot the appeal and any possibility of another trial, thus depriving Libby of his privilege, thus subjecting him to testimony before Congress or any other body that might summon him).

Beyond my pedantic ramblings on the law, I'm interested in why John Krogstad gives us a link to Clinton's pardons. What, really, is the relevance? No one is suggesting that the pardon/commutation power is somehow irrelevant or should not be invoked under any circumstances. The questions are whether Scooter Libby's sentence should have been commuted and whether the commutation is payback for "taking one for the team" on Scooter's part. That said, if we are rehashing pardons past, perhaps the following link suggests more about Younger Bush's purposes than a list of Clinton's pardons:

http://www.bartcop.com/pardonsm.jpg

Cronyism runs in the family, apparently.

[CR]

Rich,

However, there is a sense in which I suppose that CR could be right. If Bush isn't being evaluated as a politician, but as a criminal, he is pretty good at criminality. His one outstanding success has been in lining the pockets of his cronies, with minimal jail time.

That's pretty much what I meant. The fact that they're not all behind bars is pretty astounding at this point.