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View Diary: Sometimes perjury is cool but other times it's not (24 comments)

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  •  Remember (1+ / 0-)
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    Perjury is not making factually false statements under oath.

    Perjury is making statements one KNOWS to be factually false under oath.

    Proving that is a very tough row to hoe.

    "Much of movement conservatism is a con and the base is the marks." -- Chris Hayes

    by raptavio on Mon Aug 05, 2013 at 08:44:02 AM PDT

    •  Not sure about that. (1+ / 0-)
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      There is but scant authority on precisely what "willful" means in this context. The Supreme Court in dicta has indicated that willful perjury consists of "deliberate material falsification under oath." Other courts have referred to it as acting with an "intent to deceive" or as acting "intentionally.”
      The above is from:

      Congressional Research Service
      Perjury Under Federal Law: A Brief Overview
      Charles Doyle
      Senior Specialist in American Public Law
      November 5, 2010

      The same report says, in regard to making a false statement (different but related section of the US Code):

      The phrase “knowingly and willfully” refers to the circumstances under which the defendant made his statement, omitted a fact he was obliged to disclose, or included with his false documentation, i.e., “that the defendant knew that his statement was false when he made it or—which amounts in law to the same thing—consciously disregarded or averted his eyes from the likely falsity.
      citing a number of cases from the First, Seventh and D.C. Circuits. (my bolding)

      Proving that in their testimony Corzine and Clapper consciously disregarded the likely falsity of their statements does not seem to me to be that tough.

      " 'In this world, Elwood, you must be oh so smart or oh so pleasant.' Well, for years I was smart. I recommend pleasant. You may quote me." Elwood P. Dowd

      by paulbkk on Mon Aug 05, 2013 at 09:52:20 AM PDT

      [ Parent ]

      •  You just said (0+ / 0-)

        in a lot of words the same thing that I said, and then said it would be easy to prove.

        I am not understanding why you think it'd be so easy.

        You have to prove a number of things:

        One, that they were aware of the information that conflicts with their statements.

        Two, that they did not misinterpret the question in such a manner that made their answers true based on their understanding of the question.

        Three, that their answers were not an inadvertent miscommunication.

        Proving perjury is not easy.

        "Much of movement conservatism is a con and the base is the marks." -- Chris Hayes

        by raptavio on Mon Aug 05, 2013 at 09:55:31 AM PDT

        [ Parent ]

        •  In this case, though, it is easy. (3+ / 0-)
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          Sunspots, wilderness voice, paulbkk

          We know for a fact that Clapper was intentionally saying something he knew to be false. There is just no ambiguity here.

          •  Do we? (0+ / 0-)

            I mean, yes, there's a prima facie case for it, and I certainly think he was fulla BS. But proving it is another matter.

            "Much of movement conservatism is a con and the base is the marks." -- Chris Hayes

            by raptavio on Mon Aug 05, 2013 at 12:52:03 PM PDT

            [ Parent ]

            •  You think it's conceivable (2+ / 0-)
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              wilderness voice, paulbkk

              that James Clapper was simply unaware of the existence of these programs?

              •  Conceivable? Yes. (0+ / 0-)

                I think the probability is somewhere near 1 that the director of the NSA does not have personal knowledge of every program the NSA is running; that said, the scope of this one indicates that the likelihood of Clapper being ignorant of it is quite low -- probably too low to defend against a perjury charge.

                More likely, Clapper would be able to craft a credible legal defense (at least one not laughworthy) by claiming he misunderstood the question, or that the program slipped his mind when the question was asked, or somesuch like that.

                Barring that, a truly interesting defense would be to say that he was forbidden by secrecy laws to acknowledge the existence of the program on the floor of Congress, and that the Congressman asking the question knew it when he asked.

                An even more interesting defense would be to say that what Clapper said was true; after all, the NSA isn't collecting the data; Verizon is. It's just sharing that data with the NSA.

                Basically, it would be, barring an admission from Clapper, extremely difficult to make a perjury charge stick.

                "Much of movement conservatism is a con and the base is the marks." -- Chris Hayes

                by raptavio on Mon Aug 05, 2013 at 03:03:37 PM PDT

                [ Parent ]

        •  Also, he had time to prepare... (3+ / 0-)
          Recommended by:
          Sunspots, wilderness voice, paulbkk

          It wasn't a spur-of-the-moment question.  Wyden submitted his questions, so Clapper knew he needed to have an answer.  Even if you don't think you could prove "knowingly and willfully", you could at a minimum show incompetence - hence the request for a resignation.  If the best Clapper can do with his authority and several days notice is come up with a wrong answer to a clear and simple question, then he shouldn't have the authority that he has.  

          On the other point, if Congress wants to be taken seriously, then at some point they should prosecute someone.  It's not like they haven't moved forward before without cases that are ironclad.

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