Unequal justice under the law

Here is a column by Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University.

JT is on target.

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Former National Intelligence Director James Clapper is about celebrate one of the most important anniversaries of his life. March 13th will be the fifth anniversary of his commission of open perjury before the Senate Intelligence Committee. More importantly, it also happens to be when the statute of limitationsruns out — closing any possibility of prosecution for Clapper. As the clock runs out on the Clapper prosecution, Democrats like Sen. Cory Booker (D-N.J.) have charged that Homeland Security Secretary Kirstjen Nielsen committed perjury when she insisted that she could not recall if President Donald Trump called Haiti and African countries a vulgar term. The fact is that perjury is not simply tolerated, it is rewarded, in Washington. In a city of made men and women, nothing says loyalty quite as much as lying under oath.

Even in a city with a notoriously fluid notion of truth, Clapper’s false testimony was a standout. Clapper appeared before the Senate to discuss surveillance programs in the midst of a controversy over warrantless surveillance of the American public. He was asked directly, “Does the NSA collect any type of data at all on millions, or hundreds of millions of Americans?” There was no ambiguity or confusion and Clapper responded, “No, sir. … Not wittingly.” That was a lie and Clapper knew it when he said it.

Later, Clapper said that his testimony was “the least untruthful” statement he could make. That would still make it a lie of course but Clapper is a made guy. While feigned shock and disgust, most Democratic leaders notably did not call for his prosecution. Soon Clapper was back testifying and former president Obama even put Clapper on a federal panel to review the very programs that he lied about in Congress. Clapper is now regularly appearing on cable shows which, for example, used Clapper’s word as proof that Trump was lying in saying that there was surveillance of Trump Tower carried out by President Barack Obama. CNN and other networks used Clapper’s assurance without ever mentioning that he previously lied about surveillance programs.

The expiration of the statute of limitations for Clapper will have the benefit of conclusively establishing that some people in this city are above the law. In a 2007 study, author P.J. Meitl found that “[a]lmost no one is prosecuted for lying to Congress.” Indeed, he found only six people convicted of perjury or related charges in relation to Congress, going back to the 1940s.

The problem is not that the perjury statute is never enforced. Rather it is enforced against people without allies in government. Thus, Roger Clemens was prosecuted for untrue statements before Congress. He was not given the option of giving the “least untruthful” answer.

Another reason for the lack of prosecutions is that the perjury process is effectively rigged to protect officials accused of perjury or contempt before Congress. When an official like Clapper or Nielsen is accused of lying to Congress, Congress first has to refer a case to federal prosecutors and then the administration makes the decision whether to prosecute its own officials for contempt or perjury. The result has almost uniformly been “declinations” to even submit such cases to a grand jury. Thus, when both Republicans and Democrats accused CIA officials of lying to Congress about the torture program implemented under former president George W. Bush, not a single indictment was issued.

For Clapper, the attempt to justify his immunity from prosecution has tied officials into knots. After Clapper lied before Congress and there was a public outcry, Clapper gave his “least untruthful answer” justification. When many continued to demand a prosecution, National Intelligence general counsel Robert Litt insisted that Clapper misunderstood the question. Still later, Litt offered a third rationalization: that Clapper merely forgot about the massive surveillance system. That’s right. Clapper forgot one of the largest surveillance (and unconstitutional) programs in the history of this country. Litt did not explain why Clapper himself said that he knowingly chose the “least untruthful answer.” Litt added, “It was perfectly clear that he had absolutely forgotten the existence of the … program … We all make mistakes.”

Indeed, this is a “mistake” that is viewed as something of a mission in Washington. While most people view saying the “least untruthful” thing as the definition of a lie, Clapper was actually staking out a moral high ground in Washington. He actually tried to lie a little when he could have lied a lot. In a city where the moral high ground is measured in centimeters, this passes for honesty.

The Clapper standard will now set the bar for perjury at an almost unreachable height. Here you had an official about a massive surveillance program that was widely viewed as grossly unconstitutional. He then admitted that he made an “untruthful” statement. That however is not sufficient for even submitting a case to a grand jury. In Washington, the determinative question is not the perjury but the perjurer.

So, for all of the other criminal defense attorneys in the Beltway, let me be the first to say “Happy Anniversary, James.” That may sound disingenuous but it is the least untruthful thing I can come up with.