The Law of Lying: Perjury, False Statements, and Obstruction

Perjury

• Perjury [is] criminalized at 18 U.S.C. § 1621
• Perjury is extremely difficult to prove. A prosecutor has to show not only that there was a material misstatement of fact, but also that it was done so willfully–that the person knew it was false when they said it.

The Speech and Debate Clause?

• The constitution protects congresspersons from questioning and prosecution “for any Speech or Debate in either House.” Effectively, thsi immunizes lying by congresspersons–but only in their legislative capacity. The notion that a senator is immunized by the Clause when testifying as a presidential nominee doesn’t accord with the function of the Speech and Debate Clause, is undercut by Supreme Court precedent, and would lead to anomalous results.
• In Hutchinson v. Proxmire, a defamation suit against a senator for statements distributed in the senator’s newsletter, the Supreme Court held that the senator was not protected by the Speech and Debate Clause.

False Statements

• 18 U.S.C. § 1001 […] makes it a crime to “knowingly and willfully … make[] any materially false, fictitious, or fraudulent statement or representation” in the course of “any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government. There’s no requirement that the statement be under oath.
• materiality means only that the statement is “predictably capable of affecting … [an] official decision.” This same definition of materiality applies to perjury

Obstruction of Justice

• Under 18 U.S.C. § 1505, a felony offense is committed by anyone who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.”
• An accompanying code section, 18 U.S.C. § 1515(b), defines “corruptly” as “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” (emphasis added).

Other Statutes

Cover Ups and Crimes

• despite the values that might be promoted by strictly enforcing criminal laws against lying, there are dangers in over-criminalizing lying as well.
• Sometimes the cover-up is worse than the crime; sometimes it is just easier to prove. That’s often the case in leak prosecutions. […] where individual liberty is on the line, we don’t want the government to be able to skirt burdens of proof with stand-in offenses.
• perhaps special problems of chilled speech arise in criminalizing interbranch lying in particular. We want the executive branch, and the White House in particular, to share information with Congress, not just on subpoena but freely and on an ongoing basis.
• Because perjury is concrete and difficult-to-prove and prosecuting perjury rather than § 1001 lessens the problems of chilling interbranch speech and of uneven enforcement, its enforcement may seem more legitimate. But it can be enforced only if Congress asks sufficiently clear, detailed, and probing questions and refuses to accept anything but completely unambiguous answers.