Saturday, October 29, 2005

Perjury, But Not Quite Perjury - Libby Indictment

It is in chapter 79 of the federal criminal code, in title 18.  And chapter 79 is titled perjury. And the indictment clearly states perjury.  Not to mention that the prosecutor called it perjury. 

But was one of Libby's charges really a perjury charge?

The truth of the matter is that 18 USC 1621 is really the perjury statute and "Scooter" Libby was not charged with a violation of that statute.  In actuality Libby was charged with a violation of the 18 USC 1623, commonly referred to as the false declarations statute ("False declarations before grand jury or court").

There are some important differences between a charge of perjury under 1621 and false declarations under 1623.

1. For one perjury can be before any "competent tribunal, officer, or person," while false declarations is limited to being "before or ancillary to any court or grand jury of the United States."  Clearly Prosecutor Fitzgerald has used the more specific statute in the indictment and one has to credit him with making this choice. Many prosecutors use generic statutes when a more specific statute exists and one has to wonder in these cases why they failed to use the statute that Congress specifically crafted for the factual situation at hand.  So - two points for Fitzgerald here.

2. Perjury has a 2 witness rule (although courts have interpreted this to be not merely two live witnesses), while this is not required for false declarations. Probably inconsequential in this case as it looks like there will be more than one witness.

3. The false declarations statute "permits the use of inconsistent statements to prove falsity, without specification as to which statement is false." Podgor & Israel, White Collar Crime in a Nutshell 3rd Ed (Thomson/West 2004). Perhaps a benefit of charging this statute here as opposed to the generic perjury statute. 

4. In some cases the false declarations statute requires the opportunity for recantation. (Could that be why Rove made that last appearance before the grand jury?).  Perjury, however, does not have a recantation defense and in any event courts have placed some limits on the recantation defense.

With a choice of charging perjury or false declarations, it looks like Fitzgerald made the correct choice in this case.


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