This detailed Aug 19, 2016 essay by John Dean on Republican efforts to smear Hillary Clinton with a perjury charge is a compelling. I am re-blogging half of it with a link to verdict.justia.com.
The Outrageously False Charges of Perjury Against Hillary Clinton
19 Aug 2016
Endless efforts by congressional Republicans to foil or foul up Hillary Clinton’s run for the presidency have hit a new low. The members of Congress involved cannot be sued for defamation, since they are protected by the “Speech and Debate Clause” of the Constitution, but the fact that they are not merely smearing the former secretary of state but are trying to send her to jail on phony charges of perjury and lying to Congress is beyond the pale of dirty politics. It is an abuse of power and their effort to criminalize politics could one-day blow-back on them and result in their going to jail on bogus charges. They are employing a tactic that could undermine democracy, so it is appropriate to get the facts out.
Unfortunately, to explain these seamy tactics takes a bit more space than the normal column, but the facts need to be placed on the record. Without understanding the underlying testimony involved it is not possible to appreciate the falsity and absurdity of the charges against Mrs. Clinton. It is easy to call someone a liar or a perjurer. Not so easy to unpack the charges. A smear like this—and Hillary has had a career of them—takes space to address and debunk, which is why it probably has not been done. I really undertook this drill for myself because I wanted to see what was going on. I believe Hillary Clinton is far too savvy and smart to lie to Congress. And as the following information shows, I am correct and she has not done so.
That two of the most powerful committee chairs in the House of Representatives have trumped up these bogus charges is stunning to me. This is not the way mature democracies like ours are supposed to operate. These men—along with their staff and the Republican leadership that are part of this ploy—are blatantly abusing congressional powers. The out-front leaders of this squalid action are Bob Goodlatte, chair of the Committee on the Judiciary and Jason Chaffetz, chair of the Committee on Oversight and Government Reform. They claim that Secretary Clinton lied during her lengthy testimony before the House Select Committee on Benghazi on October 22, 2015. The purported basis of their claim is the statement on July 5 and testimony on July 7, 2016, by FBI Director James Comey regarding the FBI investigation of Secretary Clinton’s use of a private email system during her tenure in office. After congressional Republicans failed to criminalize her use of a private email system, they now want her charged with perjury or a criminally false statement.
On July 11, 2016, Goodlatte and Chaffetz referred the matter to the U.S. Attorney for the District of Columbia for criminal prosecution. When this produced only a form letter response from the Department of Justice, and no real headlines, they had their staff plow through the record of Secretary Clinton’s marathon all day and into the night testimony on October 22, 2015, and they sent a revised letter on August 15, 2016, outlining their perjury case in four areas where Secretary Clinton’s sworn testimony is “at odds with the FBI’s findings” as reported by Director Comey, namely:
(1) Whether she sent or received emails that were marked classified at the time; (2) whether her attorneys reviewed each of the emails on her personal email system; (3) whether there was one, or more servers that stored work-related emails during her time as Secretary of State; and (4) whether she provided all her work-related emails to the Department of State.
Goodlatte and Chaffetz proceed to lay out what they paint as conflicts between Secretary Clinton’s testimony and that of Director Comey, suggesting that Mrs. Clinton violated two criminal statutes:18 U.S.C. § 1621, the general perjury statute, and § 1001, the provisions covering false statements. Before looking at Secretary Clinton’s testimony, and that of Director Comey which Republicans claim puts the lie to Mrs. Clinton, a brief review of these statutes (in a nutshell without citations) may be helpful.
The Perjury and False Statements Statutes
Perjury is set forth in Title 18 of the U.S. Code, section 1621: “Whoever having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true… is guilty of perjury.” Punishment for perjury calls for a fine and/or up to five years’ imprisonment. Stated a bit differently, the elements of perjury that would apply in Secretary Clinton’s situation are (1) knowingly and willfully making a (2) false (3) material declaration (4) under oath (5) before a properly constituted proceeding of Congress. The essence of the crime is the willful untruth of a material statement made when under oath.
In passing, from the public record it is not clear that Secretary Clinton was given the oath before a properly constituted committee, which would require a quorum. Chairman Trey Gowdy mentioned in his opening remarks that Secretary Clinton had already been sworn. Later (and sparse) press coverage indicates that as a courtesy to Secretary Clinton, she was given the oath privately. Whether she was properly placed under oath, as well as whether the statements the Republicans are calling into question are material, will be set aside for purposes of my discussion, for two reasons. First, these are technicalities and it is clear from the record that she did not lie to the committee, so the technicalities of perjury can be passed over, and secondly because Secretary Clinton is also charged with violation of the false statement statute, which does not require an oath, and some of the other niceties of perjury, I will keep the focus on the truthfulness of her testimony.
To prove perjury, it should be noted however, requires showing beyond a reasonable doubt that the statement was made with “willful intent” and the speaker knew the statement was false. It is not perjury or a punishable false statement when the testimony results from “confusion, mistake or faulty memory.” Inconsequential inconsistencies or conflicts in testimony do not constitute perjury or false statements. An intentionally misleading but literally true answer cannot form the basis for prosecution. In short, perjury cannot be proven simply by showing the testimony of a witness is inconsistent with the statements of another witness, as the Republicans seek to do with the Goodlatte/Chaffetz letter, and with their video clips of Clinton vs. Comey testimony. Finally, to convict of perjury it must be proven by more than one witness, or one witness plus corroborative evidence.
False statement prohibition is set forth in Title 18 of the U.S. Code, section 1001: “Whoever, in any matter within the jurisdiction of the … legislative … branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; [or] (2) makes any materially false, fictitious, or fraudulent statement or representation … shall be fined [and/or] imprisoned not more than 5 years.” While this statute has been subject to much criticism, its broad language has been much used. It applies to all statements, written and oral, sworn and unsworn, voluntarily given or required by law. The core of the offense is a false representation, or concealment, by willful non-disclosure, of a material fact through a “trick, scheme, or device.” While similar to perjury, a false statement under this statute is broader. In addition to not requiring the statement be made under oath, it does not require two witnesses, or one witness with corroboration.
Clearly, both statutes criminalize lies (intentional and knowing false statements) before a committee of Congress. The hard evidence, however, shows that Hillary Clinton did not lie, rather those charging her have distorted her testimony, or claimed she had information she simply did not have at the time she testified. It is pretty ugly stuff, made even uglier because it is being promoted by two high-ranking Republican chairmen who are, the facts show, trying to frame her. So let me explain what I found with each of their charges.
Spoiler: The answer to each of the following four caption questions raising the GOP charges is NO!
Read the rest at verdict.justia.com