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You don’t have to look far to find a list of Judge Brett Kavanaugh’s lying under oath these days. There’s a legal penalty for persons convicted of that. But it hardly ever gets imposed. Indeed, people violating their oath to tell the truth are rarely even called out for it, much less charged or convicted. I am not a lawyer. But it seems to me this ought not to be the case. And surely no perjurer should ever be allowed to sit on the federal court bench in any capacity.

Here’s the Congressional Research Service scrutinizing the relevant statutes in a 24-page white paper:

Lying, or making a false statement, is a federal crime under a number of circumstances. It is afederal crime to make a material false statement in a matter within the jurisdiction of a federal agency or department. Perjury is also a federal crime. Perjury is a false statement made under oath before a federal tribunal or official.  Moreover, some false certifications are punishable as perjury by operation of a federal statute. Subornation of perjury is inducing someone else to commit perjury. It, too, is a federal crime if the perjury induced is a federal crime. Finally, conspiracy to commit any these underlying crimes is also a separate federal crime.5 Moreover, a defendant under investigation or on trial for some other federal offense may find upon conviction his sentence for the underlying offense enhanced as a consequence of a false statement he made during the course of the investigation or trial. This is an overview of federal law relating to the principal false statement and to the three primary perjury statutes.

False Statements (18 U.S.C. § 1001)

The principal federal false statement statute, 18 U.S.C. § 1001, proscribes false statements, concealment, or false documentation in any matter within the jurisdiction of any of the three branches of the federal government.6It applies generally within the executive branch. Within the judicial branch, it applies to all but presentations to the court by parties or their attorneys in judicial proceedings. Within the legislative branch, it applies to administrative matters such as procurement, as well as to “any investigations and reviews, conducted pursuant to the authority of any committee, subcommittee, commission, or office of the Congress consistent with applicable rules of the House or Senate.”

In outline form, Section 1001(a) states:

Except as otherwise provided in this section,

II. whoever,

III. in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States,

IV. knowingly and willfully—

V. a. falsifies, conceals, or covers up by any trick, scheme, or device a material fact;b. makes any materially false, fictitious, or fraudulent statement or representation; orc. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A [sexual abuse], 109B [sex offender registration], 110 [sexual exploitation], or 117 [transportation for illicit sexual purposes], or section 1591 [sex trafficking], then the term of imprisonment imposed under this section shall be not more than 8 years […]

Under Oath or Its Equivalent: Court or Grand Jury

Section 1623 reaches both false statements under oath and those offered “under penalty of perjury” by operation of 28 U.S.C. § 1746.84 The allegedly perjurious statement must be presented in a “proceeding before or ancillary to any court or grand jury of the United States.” An interview in an attorney’s office in preparation for a judicial hearing cannot be considered such an ancillary proceeding, but the phrase “proceedings ancillary to” court or grand jury proceedings does cover proceedings to take depositions in connection with civil litigation, as well as a variety of proceedings in criminal cases,88 including habeas proceedings, bail hearings, venue hearings, supervised release revocation hearings,  and suppression hearings.

False or Inconsistent

The Supreme Court’s observation that a statement that is misleading but literally true cannot support a conviction under Section 1621 because it is not false applies with equal force to perjury under Section 1623. Similarly, perjury cannot be the product of confusion, mistake, or faulty memory, but must be a statement that the defendant knows is false, although this requirement may be satisfied with evidence that the defendant was deliberately ignorant or willfully blind to the fact that the statement was false. On the other hand, “[a] question that is truly ambiguous or which affirmatively misleads the testifier can never provide a basis for a finding of perjury, as it could never be said that one intended to answer such a question untruthfully.” Yet ambiguity will be of no avail if the defendant understands the question and answers falsely nevertheless.

Subsection 1623(c) permits a perjury conviction simply on the basis of two necessarily inconsistent material declarations rather than a showing that one of the two statements is false. Conviction does require a showing, however, that the two statements were made under oath; it is not enough to show that one was made under oath and the other was made in the form of an affidavit signed under penalty of perjury. Moreover, the statements must be so inherently contradictory that one of them of necessity must be false.

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This is a Creative Commons article. The original version of this article appeared here.


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