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

Posted in: Criminal Law

At 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.

Posted in: Criminal Law, Politics