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November 02, 2005

Libby, perjury, false statements, and obstruction

Having read the Scooter Libby indictment, The Language Guy wonders if it's fair to charge a person with several different crimes for repeating the same lie:

What interests me here is the fact that making essentially the same false claims can get you indicted for "making false statements," "perjury," and "obstruction of justice." Since he is charged with two counts of making false statements and perjury and the different counts involve the same lies, we could argue that that the prosecutor managed, if I may be permitted a baseball analogy, to get three outs (types of charges) with just two pitches (two different lies). There is something about this that strikes me as unfair. [...]

I have already convicted Libby of this crime and hope he rots in prison, for outing a CIA operative is a very bad thing. As a result, I wouldn't be a good jury member. Unfortunately, the prosecutor can't prove beyond a reasonable doubt that Libby deliberately outed this agent so he is forced to move on to things he can prove, namely that Libby lied. However, I am a bit troubled that telling exactly the same lie to FBI agents and to a federal grand jury should be different crimes. It is true that if I rob two houses that are right next to each other I will be charged with two crimes. But note, in such a case, I didn't steal the same exact things. I would have stolen different things. This is why I am a bit disturbed by the Libby indictment. If he were being charged with one set of lies to the FBI and a wholly different set of lies to the grand jury, I could see two different charges.

Repeating a lie is as much a choice as lying in the first place. The longer you decieve people, the worse the consequences should be. It's harder to start telling the truth if you thereby expose your past lies, but that doesn't excuse anything.

Besides, if our goal is to deter high stakes lying, then we should punish people more severely for digging themselves in deeper. Otherwise, there's no downside to perpetuating a deception.

Telling the same lie to different authorities is like exposing yourself to different children. Each incident is a separate offense, even though it's the same thing each time.


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Isn't it normal procedure to attach multiple crimes to the same facts? So that, for example, if you can't convict on burglary, you can still convict on breaking and entering?

Well, there's the "lesser included charges" concept, where (for example), murder tends to include manslaughter, assault with a deadly weapon, assault & batter, simple assault & so forth. That's one type of multiple-charges situation, and I think you generally can only get one of those at a time.

But there's also the multiple charges *originating* from the same crime: So, you have murder, and then the accused fights the police, which gets you resisting arrest and striking a police officer, and then the accused lies on the stand, which would get you perjury.

Each of those has to be proven separately, but they're all separate crimes.

I think the writer is concerned about the validity of the distinction between the lies as separate crimes. If the crime is "telling a lie about X", then repeating the same lie is arguably not a distinct crime since all propositions with the same content (whether true or false) are equivalent - you are telling the same lie over and over, not telling two different lies.

However, this argument implicitly denies the common description of statements as "speech acts". Presumably Libby was asserting the same (false) proposition each time he told his lie (actually, it's not clear this is true, but let's assume it). This involves repeated actions of asserting the same proposition - at different times, under different circumstances, and to different audiences. These would constitute separate speech acts under a widely-held theory, even though the propositional content of each is the same. (A speech act is not defined solely by its propositional content, but also by its circumstances.)

This view is implicitly recognized by the law, which distinguishes "making false statements" from "perjury" depending on the circumstances in which the false statements were made (and even if it is the same false proposition that is in question, asserted under distinct conditions). This is, in fact, what I think is in play in Libby's case: he lied while not under oath during an investigational interview by the FBI, then lied under oath during interrogation by the prosecutor; the legal circumstances of the two cases are different (he cannot commit perjury if not under oath, but he still has a legal obligation to tell the truth to law enforcement officers; his lie to the prosecutor, however, was perjury). His two lies thus constitute two separate crimes. This fits the philosophical analysis as well, whereby his two lies, at different times under different circumstances to different parties, constitute two separate speech acts. This analysis holds true from both perspectives notwithstanding that the lies assert the same false proposition, because both the law and speech-act theory recognize as different acts speeches uttered in different contexts.

Thus, the legal distinction between "making false statements to a law enforcement officer" and "perjury" - the definition of each requires a false statement, but depends on the circumstances in which it is made - parallels the philosophical distinction between separate speech acts - which are also distinguished by both the content of the speech and the circumstances in which it is uttered. This conclusion, however, requires denying Language Guy's implicit claim that "the same lie" under different circumstances constitutes "the same crime" (i.e., that different utterances of the same proposition are not separate speech acts).

(Finally: the "obstruction of justice" charge does not hinge on any of the above. I presumably comes from the fact that he not only lied but did so deliberately in order to derail the criminal investigation. It is possible - I'm not sure - that if he had lied with some other motive or intention this charge would not apply, though he would still be liable for lying.)

Perjury = lying under oath.
False statements = lying to FBI agent, other official, or similar.
Above two are separate crimes even if same falsehood told.
Obstruction can occur through lying or otherwise (failing to turn over documents, for instance).

As Michael said - quite common to charge multiple offenses based on same occurence. Here the obstruction count stands alone. Could be found innocent on that, but guilty on false statements. A judge I worked for always wanted prosecutors to bring him the best charges, not a 44 count indictment that was 75% junk. I think Fitzgerald has done that here.

Well, I got busted for speeding on the road that runs past my apartment. Which is cool, because now I can speed on that road as much as I want and I can't be penalized without being subjected to double jeopardy. Right? Same car, same road, just a different day, right?

As for perjury, it is actually more nuanced than simply lying under oath. The lie must concern a material matter in a judicial proceeding, so the issue at hand must have the potential to affect the outcome of the proceeding. That's why Clinton's lie about adultery didn't rise to the level of perjury.

In a criminal trial, perjury by the defendant is generally assumed, and almost never prosecuted. If a person pleads "not guilty," but is then proven guilty, he's obviously lied about a matter that's material to the case. In France, they get around this problem by not allowing defendants to give sworn testimony.

This debate reminds me of a number of recent events. There is a debate on whether or not the 9/11 attacks were several different events or just one. Many victims of Katrina are having to fight insurance companies over whether or not the hurricane winds or the flooding from the hurricane caused their damage (wind damage is often covered, flooding isn't). We seem to have forgotten the ability to understand that cause and effect rule our world and that sometimes we have to judge things in toto and sometimes we have to judge things at an individual level. It used to be common sense on how to do this. Now it is being abused to justify a whole mess of immoral stances.

I'm surprised that this is even rising to the level of a talking point. Of course different instances of the same act can be charged as separate crimes. Just ask anyone who's been convicted of multiple instances of assault with a deadly weapon...

This is the Enron defense - I showed the same set of false books to the SEC and to my investors, so why should I get hit with more than one crime?

Before anyone gets too excited here we should make note of the fact that Libby has not yet been convicted of anything.
We should also note that he was not indicted for anything relating to the alleged "outing" of Valerie Plame.
In other words, if Libby is convicted, it will be for lying about a crime that never happened.
At worst, Libby was an idiot.
Rove is clean.
Cheney is clean.
Bush is clean.
Delay will probably walk too.
Face it, you've gotten your hopes up for nothing.

If you make two inconsistent statements, both under oath, and you intended to decieve at least once, then you're guilty of at least one count of perjury (or making false statements, or obstruction, depending on the circumstnaces under which you uttered the falsehood(s)). Lying about the the falsely alleged outing of a CIA operative is just as illegal as lying about the outing of a CIA operative. Oaths are oaths.

Well, Libby hasn't been convicted yet and I'm inclined to think that he won't be.
It is possible that a guy working at that level could be stupid enough to lie about a crime that was never committed but it doesn't seem likely to me. But if he's found guilty he'll pay the consequences.
What the left was really hoping for was to get Rove, Cheney and Bush. Didn't even come close.
Alito is going to replace O'Conner-a monumental conservative victory. (And don't forget that Stevens is 85. His retirement could easily come during the Bush presidency. If Bush gets to nominate another justice that will put the supreme court firmly in the hands of originalists.)
You get to see a guy put on trial that no one even heard of two weeks ago. That's a pretty crummy consolation prize if you ask me.

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