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Will Director of National Intelligence James Clapper Be Prosecuted for Lying to Congress Regarding the NSA’s Surveillance?

U.S. Capitol BuildingAt a March 2013 hearing of the Senate Intelligence Committee, Director of National Intelligence James Clapper was asked, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” (emphasis added)  Clapper responded, “No, sir.” Senator Ron Wyden (D-OR) was surprised by the answer to his question, which had been provided to Clapper in advance of the hearings, and sought clarification: “It does not?” Wyden asked. Clapper added: “Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly.”

With Edward Snowden’s leak of NSA broad snooping practices much in the news, James Clapper’s testimony has not been forgotten.  In fact, it is clear that Clapper gave a conspicuously false answer.  Indeed, he has admitted that his answer was “the least untruthful” response he could come up with at the time, and that it was “too cute by half.”

Senator Wyden understands that he was not given an honest answer by Clapper.  As does his Senate colleague, who is at the other end of the political spectrum, Senator Rand Paul (R-KY), who has openly called Clapper a liar.  Similarly, commentators on both the left and the right have called for Clapper’s firing because of his false testimony.

This raises a fundamental question: Will Clapper be prosecuted for his false testimony before the Senate?  The answer is easy: Not very likely.  This, in turn, raises an even more basic question: Why not?

Witnesses Are Too Frequently Charged With Lying to Congress

James Clapper is not the only person who is in the news for purportedly lying to Congress.  Indeed, it has become commonplace in the Republican-controlled House of Representatives to accuse witnesses who are considered politically hostile of lying to Congress when the slightest inconsistency can be found in a witness’s testimony.

For example, Republicans have been accusing Attorney General Eric Holder of giving false testimony for months.  GOP partisans claim that Holder lied when he told the House Oversight Committee that he did not know exactly when he first learned of the “Fast and Furious” gun-control program.  And more recently, the Republican partisans claim that Holder lied to the House Judiciary Committee when he testified that he did not target news journalists for leak investigations.

Today, even usually thoughtful think-tanks like the Cato Institute have no reluctance to charge witnesses with lying to Congress, before all the facts are available, as they recently did when it was found that the head of the IRS testified that there had been no targeting of political organizations for 501(c)(4) tax exempt status.

Liar-liar-pants-on-fire charges have become so ordinary and expected in Washington, that few pay serious attention to them.  Such charges are understood as merely another weapon in the partisan’s arsenal.

But there is another reality about false statements to Congress.  Lying is always easy to charge, but never easy to prove.  Before anyone can be formally and criminally charged with lying to Congress, the committee before which the purported false testimony was given must vote to refer the matter to the U.S. Attorney for the District of Columbia for prosecution.

Such votes are not easily nor lightly taken.  Such a referral for prosecution cannot be based on a hunch or a hope; rather it requires solid evidence that one or more of the relevant statutes has been violated, along with supporting evidence.

Laws Addressing False Statements to Congress Are Difficult to Successfully Invoke

There are three principal criminal statutes that address false statements to Congress: (a) the general perjury statute (18 USC 1621); (b) the general obstruction of justice statute (18 USC 1505); and (c) the general false statements statute (18 USC 1001).  Each, however, presents its own unique problems, as I will detail:

(a.) The General Perjury Statute (18 USC 1621) has been nicely encapsulated in United States v. Dunnigan which describe the elements of the crime: “A witness testifying under oath or affirmation violates this section if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” Each of these elements must be proven beyond a reasonable doubt, which can be extremely challenging.

(b.) The General Obstruction Statute (18 USC 1505) covers obstruction of Congress by lying, and in 1996 Congress defined the term “corruptly” as used in the statute to mean “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” (Emphases added.)  While this statute is not as difficult as the perjury statute to successfully invoke, proving that the defendant possessed the requisite intentional and improper state of mind when lying is not easy.

(c) The General False Statement Statute (18 USC 1001), as amended in 1996, as well as in the earlier version, is a widely employed catch-all for prosecutors.  This broadly worded statute makes it a crime to “knowingly and willfully” (1) falsify, conceal, or cover up by any trick, scheme, or device, a material fact; or (2) make any materially false, fictitious, or fraudulent statement or representation; or (3) make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.  The challenge of this last statute is proving that the defendant acted knowingly and willfully, not to mention the need to prove the actual falsity of the statement at issue.

How challenging are these three statutes to successfully invoke?  Revealingly, there have been less than a dozen successful prosecutions of witnesses testifying falsely before Congress in the past seven decades under these laws, notwithstanding untold efforts to invoke them.

Most recently, there was the effort to prosecute baseball star Roger Clemens, for purported false statements to Congress about his alleged use of steroids.  The government spent almost a decade, and several millions of dollars, only to fail twice.  First there was a mistrial, and at the second trial, the jury found Clemens not guilty.

The Explanation for the Existence of So Few Prosecutions For Lying to Congress

Six years ago, a former Capitol Hill aide and later prosecutor in the US Attorney’s Office for the District of Columbia, P.J. Meit, looked at the remarkable failure to successfully prosecute those who lie to Congress. (His analysis, “The Perjury Paradox: The Amazing Under-Enforcement of the Laws Regarding Lying to Congress,” 25 Quinnipiac L. Rev. 547 (2007), is not available without subscription.)  Not much has changed since Meit undertook his study.

Meit found that not only were the laws challenging, and not only were several of those who were successfully prosecuted later pardoned, but most who lied to Congress were never prosecuted at all because of a lack of political will to enforce the available laws, as well as a lack of the resources to do so.  Meit found most member of Congress, including those trained as attorneys, highly inept in creating a record during a Congressional hearing that could be later used to prosecute liars.  But the paucity of such prosecutions appears to boil down to the lack of the political will to pursue them.

Too many Congressional hearings have become mere political theater.  A committee chairman like Darrell Issa (R-CA), who heads the House Oversight Committee, would rather have a trumped-up charge that Attorney General Holder allegedly lied to his committee, than try to actually prove that charge.

Which brings me back to DNI James Clapper’s “least untruthful” response to Senator Wyden, and his likely fate, which does not appear particularly legally challenging given Clapper’s own admissions.

DNI Clapper’s Likely Fate

It is unusual for a witness to confess to lying to Congress, as Clapper has publicly done.  And such an admission certainly reduces the burden on any prosecutor to prove falsity and state of mind. Remarkably, it appears that Clapper has confessed to violating all three of the above statutes.  Yet it is very unlikely Clapper will be prosecuted, because that is not how Washington works today.

All of those who have been prosecuted for lying to Congress—e.g., Nixon’s former attorney general John Mitchell and former White House chief of staff H. R. Haldeman (about Watergate); California Lt. Governor Ed Reinecke (during attorney general nominee Kleindienst’s confirmation hearings); Reagan’s HUD nominee Deborah Gore Dean (about a HUD swindle); and National Security Advisers Robert McFarlane and Admiral John Poindexter (Iran-Contra); Assistant Secretary of State Elliott Abrams (about Iran-Contra), and CIA employees Alan Fiers and Clair George (about Iran Contra)—have typically been tied to larger political scandals.  Others who have been prosecuted have uniquely provoked Congressional ire, e.g. Reagan’s EPA Administrator Rita Lavelle (about her former employer).

So far, these are not Clapper’s situation.  He remains on good terms with most in Congress, and notwithstanding Snowden’s leaks, there is no evidence that the NSA is doing anything that Congress did not authorize.  Senator Wyden, who for good reason is a foe of the overly expansive powers given to NSA in our post-9/11 world, has nicely undercut the credibility of the Director of National Intelligence.  That did not appear to be Wyden’s intent, but he has made his point that the NSA is not to be trusted.

Clapper has described his dissembling as too cute by half, but, in fact, he has made himself a less than effective DNI.  It is only a matter of time until he returns to the private sector, and suffers the punishment of earning a much higher salary, as an executive in the private sector that provides most of America’s digital-intelligence operations—thanks to Bush/Cheney Administration.

Sadly, Clapper’s case is merely another footnote in the ongoing story of our badly broken government.

John DeanJohn W. Dean, a Justia columnist, is a former counsel to the president.
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  • midway54

    Of course, nothing will be done about perjury, fraud or any other felony committed by plutocrats and their servants in the Congress, in the Wall Street financial district, and yes even in the courts. There is and always will be law for the upper 1% and law for all the rest of us. One of the big uses of the law today by the plutocracy is to absolutely punish dissent, including journalists who are doing their traditional job of making democracy work through keeping citizens advised about the activities both domestic and foreign of the government and exposing abuses of governmental power against ordinary citizens and bringing those abusers to justice. Look at the noise and furor against journalists like Glenn Greenwald for his professional reporting, coming from contemptible opportunist politicians like Peter King, the hack from New York, who in his sublime ignorance seeks to have Greenwald indicted.

  • CalTex53

    Thank you for this well-thought-out piece.

  • Baneki Privacy Labs

    When those who publicly admit to violating multiple federal felony statutes are not prosecuted because of their “political support,” the rule of law is no longer in force.

    Mr. Dean nicely encapsulates the current state of prosecutorial abuse in the United States… and that’s what this represents: prosecutorial abuse. Normally, we think of such abuse as over-reach, the classic versions of a power-mad prosecutor chasing after a target for reasons unrelated to any concern with even-handed enforcement of laws, or violations thereof. A nice example is the Aaron Swartz case, which self-evidently flipped over from a legitimate prosecution to a form of political persecution early in the process.

    However, it’s just as abusive to have politically well-connected individuals systematically excluded from the threat of prosecution – even when they admit publicly they have violated the laws of the country. Indeed, one could argue with some coherence that this is more abusive towards our system of government: a class of men that is structurally “above the law” is so noxious to the founding aspirations of America as to be nauseating to consider.

    And yet this is what we have: a “hacker” can be prosecuted/persecuted for essentially any action deemed inappropriate or embarrassing by the government (or its corporate partners), and conversely the politically powerful can not only flaunt the laws of the land, but publicly admit to doing so… without any real worry about being prosecuted, convicted, or sent to prison.

    Too, let us remember that this takes place in a country that routinely sends young black men to prison for decades – decades!!! – for nonviolent, victim-free drug “crimes” that are as likely to involve conspiracy as they are any actual, tangible actions. Decades for selling – or conspiring to sell – a few rocks of crack.

    And not even the hint of a fear of prosecution for lying bald-faced to Congress – and the American citizens – about a massive, unprecedented, dragnet surveillance program that is accurately described as a “turnkey totalitarian state” in the making.

    This is no longer the rule of law. It is, by all substantive measures, a police state that has gone rogue. It no longer represents “the people” in any meaningful sense – it represents its own interests, and those of its corporate sponsors. The rest of us are categorized either as irrelevant, or threats to be neutralized. This is reality, as it stands today, in America.

    ~ Baneki Privacy Labs | baneki.cultureghost.net | @Baneki

  • Neil Carroll

    So you can’t lie before Congress? Is that a typo? Seems to me you can’t lie before being in Congress?

  • Rachel Lea Hunter

    I wholeheartedly agree,

  • Ryan Fogarty

    If we’re going to prosecute Snowden it only seems fair the James Clapper face a court as well. After all, Snowden’s crime is exposing that Clapper lied.
    Anything else seems… horribly inequitable.

  • MadAsHellToo

    You omitted Bill Clinton from your list. Was he tied to a “larger political scandal”, other than being hated by Republicans?

    By contrast, Clapper IS tied to a “larger political scandal” —- namely the rampant crime that is now a way of life for the US political establishment, of which he is part.

    My assessment is that there is no longer any semblance of rule of law in this country and that the entire US government is on the verge of collapse.

 

Access this column at http://j.st/Zgbz