October 29th, 2005

Calling all lawyers: about perjury

It’s about perjury.

“Perjury” is a term that’s being used in connection with the Libby indictment. It’s often loosely defined as “lying under oath.”

But it turns out that lying under oath is a necessary, but not sufficient, element of perjury. I remember learning this way back (seems like decades ago, doesn’t it?) during Clinton’s impeachment. It turns out that the lie involved in perjury must be about a fact material to the case.

Take a look; here’s the “material” part:

a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both.

“Material” in this context means “relevant to the case at hand.”

So my question is actually quite simple (and please don’t call me a simpleton for asking it): can someone be indicted for perjury–that is, lying about a material element of a case–when there is no other case? If perjury ends up being the only charge in a long-term investigation, what case is the lie material to?

The answer, of course may be “the one that was suspected, but for which not enough evidence was found to sustain an indictment.” Doesn’t this seem a bit strange, legally speaking?

Of course, one could argue that, even when there ends up being no primary case, the secondary case–perjury–still needs to be prosecuted to make it clear that lying under oath about a fact that would have been material had the case gone to trial is a serious offense.

But I’m wondering, if that’s true: how often are such cases actually prosecuted? And under what circumstances?

All you lawyers out there, please feel free to comment.

10 Responses to “Calling all lawyers: about perjury”

  1. Holmes Says:

    And the award for most cryptic post goes to…

  2. Ymarsakar Says:

    This is a lesson in power. There will always be the power gap, between people can do what they want and protect themselves, and people who cannot.

    And that gap is nowhere as clear as in politics and war. Where someone with connections is compared to someone without connections.

  3. JAF Says:

    Libby isn’t the first liar, nor will he be the last. The point is not that the original charges (outing CIA agent and lying husband) were not brought, the point is that he works for a Republican administration that the Media (NYTimes/CBS/NBC/ABC/WaPost) wants to tear down. If it was a democrat admin, it would get very little play in the press and would be sandwhiched betwixt the obituaries and Martha Stuarts brownie recipes. Geez, its not like he was stuffing classified documents in his drawers or something.

  4. Holmes Says:

    I suppose I can’t really answer this even as a soon-to-be lawyer. But as on any exam, I can make something up. In this instance, the original charge wasn’t dropped for lack of evidence despite having probable cause as in Stewart’s case, but that there was no case to begin with. An element of the CIA law was that Plame be a CIA covert operative who had been overseas in the past 5 years. That was clearly missing. It would be like prosecuting a murder where the victim was alive and had been unharmed. This is the danger in Congress’ power to call investigations. We saw it with Clinton (I’ve made a breakthrough in my Conservative Therapy sessions and can admit that, while Clinton was a lying sleezebag, the Starr investigation was an improper extension of scope exposing him as such)and now this.

    The other important element is the mental element- knowingly (or implied, purposefully). I do not know what evidence the Prosecutor has, but he must think it enough to cover the “knowingly” element. But a negligent (and possibly even reckless) disregard for previous statements or the material facts would not rise to the level necessary for conviction. Of course, Courts can play with the mental element quite a bit.

    I don’t really feel bad for Libby, if he is guilty. “Knowingly lying” to a a grand jury or to a Court is difficult to catch, so when it is, punishment is needed.

  5. Anonymous Says:

    the unknown blogger said…
    I think Martha’s charges were securities fraud and obstruction of justice.

    Untrue. She was expressly *not* convicted of fraud or insider trading – all the securities charges were dropped, leaving only the obstruction of justice and lying to investigators charges.

  6. Anonymous Says:

    the unknown blogger said…
    I think Martha’s charges were securities fraud and obstruction of justice.

    Untrue. She was expressly *not* convicted of fraud or insider trading – all the securities charges were dropped, leaving only the obstruction of justice and lying to investigators charges.

  7. Anonymous Says:

    I would also wonder if Libby’s indictment, in order to remain “material” to the case, necessitated that the investigation remain “ongoing”.
    Curious….

  8. Ymarsakar Says:

    I hate lawyering. It is the bane of all civilized existence. Other than corruption and decadence that is.

  9. The Unknown Blogger Says:

    I’m no lawyer, but I was curious about your question, and I found this on Google:

    “There are relatively few federal perjury prosecutions. According to the Bureau of Justice
    Statistics, in fiscal year 1999 there were 126 perjury defendants disposed of in U.S. District
    Courts. One hundred and six of these defendants were convicted and 80 imprisoned. The
    average sentence was 22.9 months.

    Source: http://library.lls.edu/pathfinders/perjury14.pdf
    (also contains an interesting overview of perjury law)

    The above quote cites the Sourcebook of Criminal Justice Statistics, which you may also find interesting and can be found here: http://www.albany.edu/sourcebook/

    I think Martha’s charges were securities fraud and obstruction of justice.

    Really enjoyed the Girl from Ipanema post, BTW. Brazilian music has long been one of my passions and I have spent many wonderful evenings in the bar where they supposedly wrote the song.

  10. Anonymous Says:

    I’ve wondered the same thing – but this would hardly be the first time it’s happened.

    Wasn’t Martha Stewart actually convicted for lying to investigators about a crime for which all charges were dropped?

    I don’t remember if “perjury” was actually one of the charges against her, but this seems to be the trend in these hard-to-prove crimes: when you can’t prove someone is guilty of the “real” crime, charge them with making your life difficult.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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