When her ordeal is over she should go back to her office, think long and hard about what she said and perhaps call a good lawyer. Here are the questions she needs to ask herself:
Did I just lie or mislead Congress? When you say under oath you don’t remember something when you do, that is lying under oath. Depending on the circumstances, it may amount to a criminal offense such as perjury or a violation of 18 U.S.C. § 1001. Ben Wittes’s Lawfare blog reminds us that this makes it illegal to “knowingly and willfully . . . make any materially false, fictitious, or fraudulent statement or representation. . . . [regarding] any matter within the jurisdiction of the executive, legislative, or judicial branch.” Recall:
In the Iran-Contra prosecutions, several federal district judges assumed. . . . that executive branch officers could be held to have violated § 1001 when they lied in unsworn statements to Congress, even on matters unrelated to collecting federal benefits. Though the Iran-Contra indictments largely centered on perjury and withholding evidence, this was an analytically significant expansion — to cover interbranch unsworn lying. . . . In its present form, § 1001 sweeps incredibly broadly: just about any material statement to an official of any branch of the federal government on a matter they are investigating.
If Nielsen did lie or mislead, she still can go back to correct the record (unlike Attorney General Jeff Sessions, who had to be dragooned back to explain his misstatements to the Senate Judiciary Committee).
If I really do recall what was said, will I be contradicted by other reliable evidence? This could be other White House officials, members of Congress or persons outside of government. They might recall her relaying what the president said, or perhaps expressing concern about what she would say. In addition, either her own email communications or someone else’s could provide contemporaneous evidence she knew exactly what was said during the meeting with the president.
Do I want to risk my career and personal reputation by lying about a racist comment from the president? Sometimes it is important to pull back from the moment. Consider how hard she has worked and the praise she has received from friends and family. Understand that she will have to explain this incident to those very same people later on. Understand that any professional career she would hope to have would likely be ruined if it is determined she lied under oath.
What am I doing here? For the sake of argument, let’s say she doesn’t personally recall the president’s statements. By now, she is aware that both Sens. Dick Durbin (D-Ill.) and Lindsey Graham (R-S.C.) know what was said. She now has to consider — not from a legal sense, but from an ethical one — whether she wants to serve a president who plainly prefers white Europeans to black and brown people, and is prepared to lie to the public about his statements and views. Public service is honorable, but not when you are enabling elected officials to lie and to pursue racist ends.
In a nutshell, this is why you cannot serve a president who is racist, dishonest or personally corrupt. You inevitably wind up enabling racism, dishonesty and corruption. If you thought you could remain untainted, you were wrong. And now, you need to either quit or face the legal and personal consequences.
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