THE IMPEACHMENT TRIAL
Jan. 15: Chabot on Perjury Law
From the Congressional Record
Mr. Manager CHABOT. Mr. Chief Justice, Senators, distinguished counsel for the President, I am Steve Chabot. I represent the First District of Ohio. Prior to my election to Congress, I practiced law in Cincinnati for about 15 years. As I stand before you today, I must admit that I feel a long way away from that small neighborhood law practice that I had. Though, while this arena may be somewhat foreign to me, the law remains the same. As one of the managers who represents the House, I am here to summarize the law of perjury. While today's discussion of the law may not be as captivating as yesterday's discussion of the facts, it is nevertheless essential that we thoroughly review the law as we move forward in this historic process. I will try to lay out the law of perjury as succinctly as I can without using an extraordinary amount of the Senate's time but beg you to indulge me.
In the United States Criminal Code, there are two perjury offenses. The offenses are found in sections 1621 and 1623 of title 18 of the United States Criminal Code. Section 1621 is the broad perjury statute which makes it a Federal offense to knowingly and willfully make a false statement about a material matter while under oath. Section 1623 is the more specific perjury statute which makes it a Federal offense to knowingly make a false statement about a material matter while under oath before a Federal court or before a Federal grand jury.
It is a well-settled rule that when two criminal statutes overlap, the Government may charge a defendant under either one. As you know, the President's false statements covered in the first impeachment article were made before a Federal grand jury. Therefore, section 1623 is the most relevant statute. However, section 1621 is applicable as well.
The elements of perjury. There are four general elements of perjury. They are an oath, an intent, falsity, and materiality. I would like to walk you through each of those elements at this time.
First, the oath.
The oath need not be administered in a particular form, but
it must be administered by a person or body legally authorized to do so. In this case, there has been no serious challenge made about the legitimacy of the oath administered to the President either in his civil deposition in the Jones v. Clinton case or before the Federal grand jury. Let's, once again, witness President Clinton swearing to tell the truth before a Federal grand jury.
The oath element has clearly been satisfied in this case.
The next element is intent. To this day, the President has refused to acknowledge what the vast majority of Americans know to be true--that he knowingly lied under oath. The President's continued inability to tell the truth, the whole truth and nothing but the truth has forced this body, this jury, to determine the President's true intent.
The intent element requires that the false testimony was knowingly stated and described. This requirement is generally satisfied by proof that the defendant knew his testimony was false at the time it was provided. As with almost all perjury cases, you will have to make a decision regarding the President's knowledge of his own false statements based on the surrounding facts and, yes, by circumstantial evidence. This does not in any way weaken the case against the President. In the absence of an admission by the defendant, relying on circumstantial evidence is virtually the only way to prove the crime of perjury.
The Federal jury instructions which Federal courts use in perjury cases can provide helpful guidance in understanding what is meant by the requirement that the false statement must be made knowingly. Let me quote from the Federal jury instructions:
When the word 'knowingly' is used, it means that the defendant realized what he was doing and was aware of the nature of his conduct, and did not act through ignorance, mistake or accident.
So as you reflect on the President's carefully calculated statements, remember the Federal jury instructions and ask a few simple questions: Did the President realize what he was doing, what he was saying? Was he aware of the nature of his conduct or did the President simply act through ignorance, mistake or accident?
The answers to these questions are undeniably clear even to the President's own attorneys. In fact, Mr. Ruff and Mr. Craig testified before the Judiciary Committee that the President willfully misled the court. Let's listen to Mr. Ruff.
(Text of videotape presentation:)
Mr. Ruff. I'm going to respond to your question. I have no doubt that he walked up to a line that he thought he understood reasonable people--and you maybe have reached this conclusion--could determine that he crossed over that line and that what for him was truthful but misleading or nonresponsive and misleading or evasive was in fact false.
In an extraordinary admission, the President's own attorney has acknowledged the care, the intention, the will of the President to say precisely what he said.
The President's actions speak volumes about his intent to make false statements under oath. For example, the President called his secretary, Betty Currie, within hours of concluding his civil deposition and asked her to come to the White House the following day. President Clinton then recited false characterizations to her about his relationship with Ms. Lewinsky. As you have already heard, Ms. Currie testified that the President made the following statements to her:
You were always there when she was there, right? We were never really alone. You could see and hear everything. Monica came on to me, and I never touched her, right? She wanted to have sex with me, and I can't do that.
This is not the conduct of someone who believed he had testified truthfully. It is not the conduct of someone who acted through ignorance, mistake or accident. Rather, it is the conduct of someone who lied, knew he had lied, and needed others to modify their stories accordingly.
Finally, it is painstakingly clear during the President's grand jury testimony that he, again, knows exactly what he is doing. Let's again watch the following excerpt from that testimony.
(Text of videotape presentation:)
. . . was an utterly false statement. Is that correct?
A It depends on what the meaning of the word 'is' is.
In this instance, and in many others that have been presented to you over the last 2 days, the facts and the law speak plainly.
The President's actions and demeanor make the case that President Clinton knowingly and willfully lied under oath in a grand jury proceeding and in a civil deposition. The compelling evidence in this case satisfies the intent element required under both sections 1621 and 1623 of the Federal Criminal Code.
The next element, falsity. The next element of perjury is falsity. In order for perjury to occur in this case, the President must have made one or more false statements. Yesterday my colleagues went through the evidence on this matter in great detail and clearly demonstrated that the President did, in fact, make false statements while under oath. Because of the evidence that was presented to date, without question the President's falsity and his false statements have been shown, so I am going to move forward to the final element of perjury, which is materiality.
The test for whether a statement is material, as stated by the Supreme Court in Kungys v. United States, is simply whether it had a 'natural tendency to influence' or was 'capable of influencing' the official proceeding. The law also makes clear that the false statement does not have to actually impede the grand jury's investigation for the statement to be material.
The law regarding the materiality of false statements before a grand jury is very straightforward. Because a grand jury's authority to investigate is broad, the realm of declarations regarded as material is broad. The President's false statements to the grand jury were material because the grand jury was investigating whether the President had obstructed justice and committed perjury in a civil deposition.
Now let's look at potential legal smokescreens. The President's attorneys will try to distract you from the relevant law and facts in this case. To help you stay focused on the law, I would like to preview some of the arguments that may be made by the President's attorneys.
Legal smokescreen No. 1, the Bronston case. You will probably hear opposing counsel argue that the President did not technically commit perjury, and appeal to the case of Bronston v. United States. This is a legal smokescreen. In the Bronston case, the Supreme Court held that statements that are literally truthful and nonresponsive cannot by themselves form the basis for a perjury conviction. This is the cornerstone of the President's defense. However, the Court also held that the unresponsive statements must be technically true in order to prevent a perjury conviction; such statements must not be capable of being conclusively proven false.
As we have seen, none of the President's perjurious statements before the grand jury, covered in the first impeachment article, are technically true. So, when the President's counsel cites the Bronston case, remember the facts. Ask yourselves, are the President's answers literally true? And remember, to be literally true they must actually be true.
It is also important to note that, consistent with the Bronston case, the response, 'I don't recall,' is not technically true if the President actually could recall. The factual record in the case, consisting of multiple sworn statements contradicting the President's testimony and highly specific corroborating evidence, demonstrates that the President's statements were not literally true or legally accurate. On the contrary, the record establishes that the President repeatedly lied, he repeatedly deceived, he repeatedly
There are other clear and important limitations on the Bronston case's scope. In United States v. DeZarn, handed down just 3 months ago by the 6th circuit court of appeals, the court made an important ruling that is directly on point in this case. The court of appeals stated:
Because we believe that the crime of perjury depends not only upon the clarity of the questioning itself, but also upon the knowledge and reasonable understanding of the testifier [President Clinton] as to what is meant by the questioning, we hold that a defendant may be found guilty of perjury if a jury could find beyond a reasonable doubt from the evidence presented that the defendant knew what the question meant and gave knowingly untruthful and materially misleading answers in response.
The Bronston case has further limitations. For example, in United States v. Swindall, the court held that the jury can convict for perjury even if the questions or statements involved are capable of multiple interpretations where only one interpretation is reasonable under the circumstances surrounding their utterances.
In United States v. Doherty, the court held that the prosecution for perjury is not barred under Bronston, 'whenever some ambiguity can be found by an implausibly strained reading of the question' posed. I would submit to this body that 'implausibly strained reading of the question' posed is precisely what confronts us time and again in the case of the President before the grand jury.
Legal smokescreen No. 2, the two-witness rule. In the coming days you may hear opposing counsel argue that the President did not commit perjury by appealing to the so-called two-witness rule. Again, this is nothing but a legal smokescreen. This common law rule requires that there be either two witnesses to a perjurious statement or, in the alternative, that there be one witness and corroborating evidence of the perjury. Opposing counsel may suggest that, because there were not two witnesses present for some of the President's false statements, he did not technically commit perjury. Such an appeal to the two-witness rule is wrong for several reasons.
First, the two-witness rule is not applicable under section 1623, only under 1621. The language of 1623 expressly provides, 'it shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.'
Congress passed section 1623 back in 1970 to eliminate the two-witness requirement and to facilitate the prosecution of perjury and enhance the reliability of testimony before Federal courts and Federal grand juries. The legislative history establishes this as the fundamental purpose of the statute.
Additionally, substantial evidence has been presented over the last 2 days to satisfy the requirements of the two-witness rule under section 1621. Remember, when the two-witness rule applies, it does not actually require two witnesses. Indeed, it requires either two witnesses or one witness and corroborating evidence. As you know, there is a witness to each and every one of the President's false statements and there is voluminous evidence which corroborates the falsehood of his statements.
Finally, case law tells us that the two-witness rule is not applicable under certain circumstances, when the defendant falsely claims an inability to recall a material matter.
Another possible legal smokescreen, the drafting of article I, article I being the first article of impeachment.
As you know, impeachment article I says:
Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grandjury . . .
You may hear opposing counsel argue that section 1621 is the only applicable statute because the article of impeachment accuses the President of willfully committing perjury. This is another legal smokescreen.
Following that reasoning, one could just as easily make the argument that 1623 was contemplated here because the term 'false' does not appear in 1621 but does appear in 1623. However, that is not the point. The point is that the language of the impeachment article did not use these terms as terms of art as they are defined and used in various criminal statutes.
While the article of impeachment does not draw a distinction between the standards, evidence has been presented over the last 2 days that demonstrates that the President did knowingly and willfully lie under oath regarding material matters before a grand jury, and that satisfies both 1623 and 1621.
Again, in the context of perjury law, the distinction between a knowing falsehood and a willful falsehood is almost a distinction without a difference. In American Surety Company v. Sullivan, the Second Circuit stated that 'the word 'willful,' even in a criminal statute, means no more than the person charged with the duty knows what he is doing.'
So that, in essence, is the law of perjury.
Mr. Chief Justice, Members of the Senate, throughout this long and difficult process, apologists for the President have maintained that his actions might well have been reprehensible but are not necessarily worthy of impeachment and removal from office. I submit, however, that telling the truth under oath is critically important to our judicial system and that perjury, of which I believe a compelling case is being made, strikes a terrible blow against the machinery of justice in this country.
The President of the United States, the chief law enforcement officer of this land, lied under oath. He raised his right hand and he swore to tell the truth, the whole truth, and nothing but the truth, and then he lied. Pure and simple.
Why is perjury such a serious offense? Under the American system of justice, our courts are charged with seeking the truth. Every day, American citizens raise their right hands in courtrooms across the country and take an oath to tell the truth. Breaking that oath cripples our justice system. By lying under oath, the President did not just commit perjury, an offense punishable under our criminal code, but he chipped away at the very cornerstone of our judicial system.
The first Chief Justice of the United States of the Supreme Court, John Jay, eloquently stated why perjury is so dangerous over 200 years ago. On June 25, 1792, in a charge to the grand jury of the Circuit Court for the District of Vermont, the Chief Justice said:
Independent of the abominable Insult which Perjury offers to the divine Being, there is no Crime more extensively pernicious to Society. It discolours and poisons Streams of Justice, and by substituting Falsehood for Truth, saps the Foundations of personal and public Rights--Controversies of various kinds exist at all Times, and in all Communities. To decide them, Courts of Justice are instituted--their Decisions must be regulated by Evidence, and the greater part of Evidence will always consist of the Testimony of witnesses. This Testimony is given under those solemn obligations which an appeal to the God of Truth impose; and if oaths should cease to be held sacred, our dearest and most valuable Rights would become insecure.
Why has the President been impeached by the U.S. House of Representatives? Why is he on trial here today in the U.S. Senate? Because he lied under oath. Because he committed perjury. Because if the oaths cease to be held sacred, our dearest and most valuable rights will become insecure.
During the course of this trial, Members of this distinguished body, the jurors in this case, will have to consider the law and the facts very carefully. It is a daunting task and an awesome responsibility, one that cannot be taken lightly. I humbly suggest to those sitting in judgment of the President that we must all weigh the impact of our actions, not only on our beloved Nation today, but on American history. It is my belief that if the actions of the President are ultimately disregarded or minimized, we will be sending a sorry message to the American people that the President of the United States is above the law. We will be sending a message to our children, to my children, that telling the truth doesn't really matter if you have a good lawyer or you are an exceptionally skilled liar. That would be tragic.
Mr. Chief Justice, Senators, let us instead send a message to the American people and to the boys and girls who will be studying American history in the years to come that no person is above the law and that this great Nation remains an entity governed by the rule of law. Let us do what is right. Let us do what is just. Thank you.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Cannon.
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