Below is an expanded version of my column that ran in USA Today on the approaching expiration of the statute of limitations for prosecuting former National Intelligence Director James Clapper for perjury. This is a city that protects its own and Clapper is the Beltway equivalent of a made man. People like Clapper do not get prosecuted. We do not call them criminal; just complicated.
Here is the column:
Former National Intelligence Director James Clapper is about celebrate one of the most important anniversaries of his life. March 13th will be the fifth anniversary of his commission of open perjury before the Senate Intelligence Committee. More importantly, it also happens to be when the statute of limitationsruns out — closing any possibility of prosecution for Clapper. As the clock runs out on the Clapper prosecution, Democrats like Sen. Cory Booker (D-N.J.) have charged that Homeland Security Secretary Kirstjen Nielsen committed perjury when she insisted that she could not recall if President Donald Trump called Haiti and African countries a vulgar term. The fact is that perjury is not simply tolerated, it is rewarded, in Washington. In a city of made men and women, nothing says loyalty quite as much as lying under oath.
Even in a city with a notoriously fluid notion of truth, Clapper’s false testimony was a standout. Clapper appeared before the Senate to discuss surveillance programs in the midst of a controversy over warrantless surveillance of the American public. He was asked directly, “Does the NSA collect any type of data at all on millions, or hundreds of millions of Americans?” There was no ambiguity or confusion and Clapper responded, “No, sir. … Not wittingly.” That was a lie and Clapper knew it when he said it.
Later, Clapper said that his testimony was “the least untruthful” statement he could make. That would still make it a lie of course but Clapper is a made guy. While feigned shock and disgust, most Democratic leaders notably did not call for his prosecution. Soon Clapper was back testifying and former president Obama even put Clapper on a federal panel to review the very programs that he lied about in Congress. Clapper is now regularly appearing on cable shows which, for example, used Clapper’s word as proof that Trump was lying in saying that there was surveillance of Trump Tower carried out by President Barack Obama. CNN and other networks used Clapper’s assurance without ever mentioning that he previously lied about surveillance programs.
The expiration of the statute of limitations for Clapper will have the benefit of conclusively establishing that some people in this city are above the law. In a 2007 study, author P.J. Meitl found that “[a]lmost no one is prosecuted for lying to Congress.” Indeed, he found only six people convicted of perjury or related charges in relation to Congress, going back to the 1940s.
The problem is not that the perjury statute is never enforced. Rather it is enforced against people without allies in government. Thus, Roger Clemens was prosecuted for untrue statements before Congress. He was not given the option of giving the “least untruthful” answer.
Another reason for the lack of prosecutions is that the perjury process is effectively rigged to protect officials accused of perjury or contempt before Congress. When an official like Clapper or Nielsen is accused of lying to Congress, Congress first has to refer a case to federal prosecutors and then the administration makes the decision whether to prosecute its own officials for contempt or perjury. The result has almost uniformly been “declinations” to even submit such cases to a grand jury. Thus, when both Republicans and Democrats accused CIA officials of lying to Congress about the torture program implemented under former president George W. Bush, not a single indictment was issued.
For Clapper, the attempt to justify his immunity from prosecution has tied officials into knots. After Clapper lied before Congress and there was a public outcry, Clapper gave his “least untruthful answer” justification. When many continued to demand a prosecution, National Intelligence general counsel Robert Litt insisted that Clapper misunderstood the question. Still later, Litt offered a third rationalization: that Clapper merely forgot about the massive surveillance system. That’s right. Clapper forgot one of the largest surveillance (and unconstitutional) programs in the history of this country. Litt did not explain why Clapper himself said that he knowingly chose the “least untruthful answer.” Litt added, “It was perfectly clear that he had absolutely forgotten the existence of the … program … We all make mistakes.”
Indeed, this is a “mistake” that is viewed as something of a mission in Washington. While most people view saying the “least untruthful” thing as the definition of a lie, Clapper was actually staking out a moral high ground in Washington. He actually tried to lie a little when he could have lied a lot. In a city where the moral high ground is measured in centimeters, this passes for honesty.
The Clapper standard will now set the bar for perjury at an almost unreachable height. Here you had an official about a massive surveillance program that was widely viewed as grossly unconstitutional. He then admitted that he made an “untruthful” statement. That however is not sufficient for even submitting a case to a grand jury. In Washington, the determinative question is not the perjury but the perjurer.
So, for all of the other criminal defense attorneys in the Beltway, let me be the first to say “Happy Anniversary, James.” That may sound disingenuous but it is the least untruthful thing I can come up with.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
In an interview on German TV, Edward J. Snowden said that his “breaking point” was “seeing Director of National Intelligence, James Clapper, directly lie under oath to Congress” by denying the existence of a domestic spying program conducted by the National Security Agency. Snowden elaborated that “the public had a right to know about these programs. The public had a right to know that which the government is doing in its name, and that which the government is doing against the public.” ― Noam Chomsky from his book, Because We Say So
Prosecutions and public jury trials for sedition are needed to educate the brainwashed left who subvert Our People’s Beloved Constitution.
Clapper obviously lied. As did Trump when he signed the spy bill. Does he think his base is that stupid?!
Donald J. Trump
Verified account @realDonaldTrump
Jan 19
Just signed 702 Bill to reauthorize foreign intelligence collection. This is NOT the same FISA law that was so wrongly abused during the election. I will always do the right thing for our country and put the safety of the American people first!
The Harvey Weinstein of the deep state.
So, when does the deep state version of #metoo kick off? Better be soon!
Let’s see how long it takes to release the FISA memo and how long it will take to charge someone, anyone besides Manifort and Papadopolis?
The law is just for us commoners.
He should have used a Clinton dodge, like: “That depends on what ‘does’ means.”
Why is a Clapper Defense not cited as a precedent in all other perjury cases? Is it because he was not indicted, prosecuted and found not guilty?
Watch an ordinary American try the “least untruthful” excuse.
We know that it sn’t right, we hate it, but what can we do?
They hijacked our republic.
Clap, clap, bo bap.
Regardless of who you are if you are rich or poor the law should apply equally if you break the law , otherwise the judicial system is a not worth a dam unless you are rich or a crooked politician if you breaks the law.
Doesn’t really seem fair does it ?
Amen and very well said!
Clapper lied to a room full of professional liars. Imagine that! I am shocked, shocked beyond words!
I get it. If a Harvard Law School Professor can cling to an absurd hope that Hillary Clinton might still become President, then why can’t a George Washington University Law Professor bemoan the soon-to-be-expired, yet perfectly plausible, hope that James Clapper might as yet be prosecuted for perjury? It’s only fair.
Let’s see. 9 days left in January (not counting today). 28 days in February. And 13 days in March. Adds up to exactly 50 days left to go before Turley’s perfectly plausible hope for Clapper’s comeuppance becomes officially deceased. Start the countdown from 50 tomorrow.
It’s a good topic for comment, but not a topic that has any sense, consistency, or easy explanation. President Clinton was not protected, nor did the deep State “take care of its own” when it’s own was Edward Snowdon. Why would Hillary Clinton have been protected, but not Bill? Why would W and Cheney have been protected from war crimes indictment, but Bill was not protected from actions that harmed no one? Mr Clapper was dealing with the conditions that, yes, all electronic information is collected and archived, but is only actually reviewed if there is criminal suspicion or if someone with access wants to know what his x-girlfriend is doing and saying.
All electronic info can be hacked as demonstrated by this tech savvy 15 year old who hacked into our intelligence agencies…
http://www.telegraph.co.uk/news/2018/01/19/british-15-year-old-gained-access-intelligence-operations-afghanistan/
Thanks for the link, Autumn.
It’s interesting that Turley should use the metaphor of a “made man” to describe Clapper’s immunity for prosecution. This is a sound metaphor because it indicates that Clapper belongs to a special club that engages in criminal activity and that this club demands complete loyalty. In exchange, “the family” gives the “made man” protection.
I have similarly expressed this “special club” as the Deep State (aka the Military-Industrial-Complex and “the Invisible Government”). And I’ve stated on these message boards many times that the Deep State always takes care of its own. Thus, no matter what evidence exists to prosecute Hillary Clinton and how overwhelming that evidence may be, Clinton is “untouchable.” She “made her bones” by performing criminal acts on behalf of the Deep State and has thus earned the Deep State’s protection.
Clapper’s case isn’t even particularly outrageous. Most intelligent people who first heard about his testimony knew he lied under oath. Of course, the Government knowingly and deliberately conducts illegal surveillance. That’s a matter of history, so why would things change now when things are run by people just as corrupt, if not more so, than those figures in past history?
For a far more egregious case of perjury committed by a high level government official, consider the case of David Atlee Phillips, the CIA’s chief of operations for the Western hemisphere. Special investigators determined that Phillips was the government link to the conspiracy to murder President John F. Kennedy. This was a pivotal moment in history because had the government charged Phillips with perjury, only two things could happen: (1) Phillips would have to disclose the government role in the President’s murder; or (2) if Phillips complied with omertà by refusing to cooperate, he’d have to go to jail.
Here are the shortened facts of the case. On or about September 7, 1963, just a few months before the JFK assassination on November 22, 1963, a CIA official who went by the name of “Maurice Bishop” was meeting with Lee Harvey Oswald in the Southland building in Dallas, Texas. At a scheduled time, Antonio Veciana, a CIA operative joined the two in the lobby of the building.
“‘When I arrived there,’ says Veciana, ‘Bishop had given me the address to a building, a bank or insurance company [the Southland building in Dallas]. Bishop was waiting there with a young guy, an American, and the three of us walked to a cafeteria. The young guy did not say a word. He was very quiet, very strange. When I take a cup of coffee, Bishop says to him: ‘I’ll meet you in two or three hours.’ Bishop and I then talked about the [anti-Castro] movement and our plans, but not when this guy was there. This was Lee Oswald. I didn’t know until November when I saw his picture [in the newspapers and on TV]. But this means Oswald was working with Bishop.”
Pennsylvania Senator Richard Schweiker, one of the most honest and courageous politicians to ever serve in the Senate and who was involved in the efforts to get to the bottom of the JFK murder case, pursued this lead and ultimately discovered that Maurice Bishop was, in fact, David Atlee Phillips, and they could prove it in a court of law. This was obviously a watershed moment in history. What was the CIA’s chief of operations for the Western hemisphere doing meeting with a man that would only months later be accused of murdering the President of the United States and a police officer? Was Oswald really working for the CIA and did he then became a “patsy” as he himself said? Phillips held the answers. But the Government, of course, declined to prosecute Phillips, as they were not going to allow one of their own to go down and take others in the Deep State with him.
Here’s a video clip giving some highlights regarding one of the most important cases–if not THE most important case–of perjury in the entire history of the United States. If the voice of the narrator sounds vaguely familiar, that’s because the narrator was Bill O’Reilly, who was then a real investigative reporter. This was long before he recognized that there was big money to be made in TV by presstituting himself.
Ralph –
Unfortunately, very few of the customers here know anything about the 11/22/63 coup d’etat in Dallas that resulted in LBJ going to the White House, instead of the Big Grey Bar House which he would have been sent to if JFK hadn’t been assassinated.
And few, if any of JT’s customers know about how Lee HARVEY Oswald was set up by the CIA and
LEE Harvey Oswald as part of the CIA’s two Oswalds project.
Those curious enough about that 11/22/63 coup will no doubt be richly rewarded – if made cynical – by
visiting the voluminous evidence uncovered by John Armstrong at Harvey&Lee.net
If taxes are for the little people, so is the rule of law!
Clapper deserves to be sent to Coventry.
Nobody is prosecuted unless they are an ordinary citizen.
“Processed Clapper.”
I like the sound of that. That’s what the French did; process the despotic monarchists with guillotines.
Let’s get this party started!
Clapper deserves hard time, maximum sentence, right up there with Mueller, who told Soetoro bin Bama it’s OK for Soetoro to assassinate American citizens on US soil without criminal charge. If you don’t believe Mueller did that, do your own search.
We are embarrassment to the better banana republics.