Perjury: A Tough Case to Make
Washington Post Staff Writers
Thursday, September 24, 1998; Page A14
Last year, federal prosecutors launched nearly 50,000 criminal cases. Eighty-seven of them were perjury cases.
Lying, and what the law should do about it, are among the core issues in the case against President Clinton. Perjury allegations are central to five of the 11 grounds for impeachment in independent counsel Kenneth W. Starr's report to Congress.
In the eyes of the law, lying is anything but simple.
Lying to a D.C. police officer, for example, is not a crime. Lying to an FBI agent is. (Lying to the officer is still not the best idea; it could lead to various charges, including obstruction of justice.)
'Splitting Legal Hairs'
The crime of perjury is more complicated than making a statement that is not true. "Perjury is really hard to prove," said Jim Cole, a veteran Washington public integrity lawyer now in private practice. "When you try a perjury case, you are splitting legal hairs. They are very technical cases. It comes down to what the person said, what they understood themselves to be saying, and what they understood the question to be."
Many of the legal arguments between Starr and the White House are debates over when a spotty memory turns into perjury. Both sides cite dozens of cases to support their contentions -- an argument that could stretch back to the British Perjury Statute of 1563, when perjury was defined as a deliberate lie.
Whatever the legal arguments, in practice, prosecutors go after only certain kinds of liars -- chiefly public officials and bad police officers.
"As prosecutors, we encounter people who lie under oath all the time," acknowledged S. Randolph Sengel, the commonwealth's attorney in Alexandria. "I don't mean to sound cynical, but a day doesn't go by when somebody doesn't come to court and bend it a little. If you were determined to prosecute every falsehood people made in court, that is all you would be doing."
Perjury often is a way for prosecutors to boost other charges -- especially in public corruption cases. Federal prosecutors said they have no set rules or formulas about when to charge perjury, but they acknowledged that the threshold is lower for lies by public servants.
"We tend to be particularly perturbed if it's high public officials," said an assistant U.S. attorney in the District who asked not to be identified.
Some prosecutors said public officials ought to be held to a higher standard than other citizens. But other lawyers said there may be a more mundane reason for the large number of politicians among perjury defendants. While many attorneys will tell their clients not to talk to a grand jury, "Public officials and cops are going to talk more often in the grand jury," Cole said. "They think they'll be able to talk their way out of it."
Independent counsels, in particular, have tended to bring perjury charges more often than government prosecutors do. Some defense lawyers said independent counsels use perjury as a way to get at targets who could not be convicted on the substance of the investigation. But others said the frequent perjury charges stem instead from the nature of public corruption probes: Targets have often testified at great length before grand juries or Congress, giving the independent counsels mountains of material to inspect for discrepancies between testimony and the documentary evidence.
In the Iran-contra scandal, many charges involved witnesses accused of lying to congressional investigators. In a case that sent a message to other prospective witnesses, a Chicago man was convicted of lying to a federal grand jury investigating former representative Dan Rostenkowski (D-Ill.). Rostenkowski ultimately pleaded guilty in 1996 to two counts of mail fraud.
Much of the pending case against former Clinton administration housing secretary Henry Cisneros focuses on false statements he allegedly made to the FBI during a background investigation. Cisneros is accused of conspiring to hide details of his relationship with an ex-mistress before and after his confirmation in January 1993. He has denied wrongdoing.
And in perhaps the most famous perjury case in American history, Alger Hiss, a former State Department official, was convicted in 1950 of lying about whether he had passed copies of confidential documents to Whittaker Chambers, who claimed to be a courier for a communist spy ring in the 1930s. Hiss, who denied the accusations until his death in 1996, was never charged with espionage; instead, he was prosecuted for lying in his sworn statements.
A Narrow Concept
Prosecutors and defense lawyers agree that perjury is and should be a difficult crime to prove.
"It is so common for honest witnesses to remember events differently or to get confused or make mistakes that you need a law that only punishes lies that are deliberate and have real consequences," said Ephraim Margolin, a criminal defense lawyer in San Francisco. "Otherwise, every witness would be exposed to prosecution."
Perjury is far narrower than the lay concept of lying. "You have to show what was said was false, that the defendant knew it was false, and that the defendant willfully lied," said E. Lawrence Barcella Jr., a Washington defense lawyer and former federal prosecutor.
And to be prosecuted, lies must be important. Under federal law, for false testimony to qualify as perjury, it must have the potential to affect the outcome of the proceeding.
West Virginia resident Sharon Dunnigan learned the hard way that when perjury is prosecuted, it can be serious business. Three witnesses told a federal jury that Dunnigan ran cocaine from Cleveland to Charleston, W.Va. Three others said they bought cocaine from her. Never happened, Dunnigan testified.
The jury found her guilty of drug trafficking in the 1989 case. The sentencing guidelines for trafficking would have put her away for about three years. Then, prosecutors persuaded the judge to tack on nearly another year for lying.
The extra punishment was justified because deliberately lying to a court "reflects on a defendant's . . . willingness to accept the commands of the law and the authority of the court, and on her character in general," Justice Anthony M. Kennedy wrote when the Supreme Court unanimously upheld the sentencing in 1993.
Throughout legal history, lies that rose to the level of perjury have been punished harshly. In Elizabethan England, perjurers were pilloried in the stocks, and in Louis XIV's France, perjury could be punished by beheading.
Under U.S. law, perjurers get at most five years in prison, but in the Dunnigan case, Kennedy wrote that a defendant who commits perjury is "more threatening to society and less deserving of leniency" than one who tells the truth. The "willingness to frustrate judicial proceedings to avoid criminal liability suggests that the need for incapacitation and retribution is heightened."
But such cases are the exception. Blatantly false statements often go unprosecuted. "There's lying in criminal cases all the time," said one longtime prosecutor who asked not to be named. "Defendants lie. They bring in alibi witnesses who lie. But we usually will not prosecute them for perjury."
Question of Semantics
For centuries, Anglo-American courts have erected stiff hurdles against perjury prosecutions in part so that witnesses will not fear that a misstatement would expose them to prosecution.
In a trial system that permits opposing lawyers to grill each other's witnesses, the chief safeguard against deliberate lies is supposed to be careful questioning -- not the threat of a perjury prosecution.
In the Clinton impeachment case, Starr has alleged that the president committed perjury when he used "semantic" arguments to deny a sexual relationship with Monica S. Lewinsky. While the president has admitted making misleading statements, he and his lawyers steadfastly deny that he committed perjury either in his Jan. 17 deposition in the Paula Jones sexual harassment lawsuit or during his grand jury testimony seven months later.
In a now-infamous statement, Clinton told the grand jury that one of his denials in the deposition was literally truthful because the question was asked in the present tense and indeed, by the time of the deposition, his intimate relationship with Lewinsky had long since ended.
"It depends on what the meaning of the word 'is' is," Clinton said. "Actually, in the present tense, that is an accurate statement."
The president appears to have studied the law well. In a 1973 decision, the Supreme Court dismissed a perjury conviction against a witness who made a statement that was accurate in the present tense but was otherwise clearly false and misleading.
"The burden is on the questioner to pin the witness down to the specific object of the questioner's inquiry," wrote Chief Justice Warren E. Burger for a unanimous court.
The Supreme Court case grew out of a 1966 bankruptcy proceeding in which creditors were trying to show that Samuel Bronston, a movie producer, had hidden money in Swiss bank accounts.
A lawyer for one creditor questioned the defendant:
"Do you have any bank accounts in Swiss Banks, Mr. Bronston?"
"Have you ever?"
"The company had an account there for about six months, in Zurich."
Bronston's first answer was literally true -- he did not have a personal Swiss account at the time of the questioning. But prosecutors discovered Bronston had kept large sums in a personal bank account in Switzerland for five years until 1964.
The clever defendant's second answer also was literally true. The question was about personal accounts and the answer was about a company account.
Nonetheless, Bronston was convicted of perjury because he gave an answer that was "not literally false, but when considered in the context in which it was given nonetheless constituted a false statement."
When the Supreme Court agreed to review Bronston's conviction, the Justice Department argued that his testimony fell into a category of perjury defined as "intentionally misleading responses with an especially strong tendency to mislead the questioner."
The court rejected this argument and reversed the conviction. Bronston's answers appeared "shrewdly calculated to evade," Burger granted, but "any special problems arising from the literally true but unresponsive answer are to be remedied through the 'questioner's acuity' and not by a federal perjury prosecution."
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