Dismissal of such charges as process crimes plays down their importance. It suggests the misconduct was not really serious or substantive but just some kind of rules violation. Such cases are frequently attacked as unfair or unjustified. Critics claim that prosecutors set “perjury traps” so they can trick otherwise innocent defendants into making a mistake and then charge them. Or they claim prosecutors were on a witch hunt and charged process crimes because they couldn’t prove anything else.
This tactic is not new. For example, during the George W. Bush administration, another special counsel, Patrick Fitzgerald, investigated the leak of the identity of a covert CIA agent, Valerie Plame. I’ll never forget seeing a Republican United States senator saying she hoped that if there were indictments they would be for real crimes and not for a “technicality" such as perjury. (That investigation, by the way, resulted in the conviction of Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby, for lying to the FBI and the grand jury about the White House’s role in the leak. President Trump recently granted Libby a controversial pardon, saying Libby had been “treated unfairly.”)
Others seek to minimize the importance of such charges by claiming they would not even exist if it weren’t for the special counsel’s investigation itself. For example, Harvard law professor and frequent Mueller critic Alan Dershowitz recently argued that the “process crimes" with which Stone is charged are part of a pattern of Mueller charging crimes that arose out of his own inquiry, and that this should raise “serious concerns.”
When it comes to the charges against Stone as well as those against Cohen, Dershowitz’s claim is simply not true. They were charged with lying to Congress, which was conducting its own investigation of possible Russian interference in the election. Those crimes took place independent of the Mueller investigation, and it was Mueller’s investigation that unearthed them.
But whether they involved obstructing a congressional probe or Mueller’s own investigation, crimes such as false statements, perjury and obstruction of justice — sometimes referred to as coverup crimes — are not mere technicalities. In fact, they attack the justice system itself. Our legal system depends on the ability of finders of fact to receive truthful and accurate information. If witnesses lie in the grand jury, lie to the FBI, tamper with witnesses, destroy evidence or otherwise impede the due administration of justice, there must be consequences. If such crimes could take place with impunity, it would be impossible to investigate or prosecute anything. For the justice system to function, people must tell the truth — and must know they will pay a price if they don’t.
Similarly, Congress cannot function effectively if people can freely obstruct its proceedings. Stone allegedly lied to the House Permanent Select Committee on Intelligence while it was investigating a matter of grave importance: an unprecedented attack on our democracy by a hostile foreign government. Lies in such an investigation prevent Congress from getting to the bottom of what happened, informing the public and taking appropriate action.
When announcing the Libby indictment in 2005, Fitzgerald analogized perjury and obstruction of justice to a baseball game where the defendant throws sand in the umpire’s eyes. Investigators are supposed to call the balls and strikes, determine what is fair and what is foul. These crimes make it impossible for them to see what really happened.
Coverup crimes are prosecuted to deter conduct that undermines the justice system itself and to enforce our commitment to the rule of law. That’s why prosecutors, FBI agents, judges and others who make their living within the justice system take these crimes so seriously. So please, stop dismissing such charges as mere "process crimes.” The vital institutions that these prosecutions protect are ones on which we all depend.