Should these witnesses testify, they can resist certain questions—for example by invoking executive privilege or their own Fifth Amendment rights—and they would surely insert “do not recall”s into the record, but they would face consequences for lying. The president often characterizes his public comments on pending investigations as “freedom of speech” or “fighting back,” but his aides have no First Amendment right to lie under oath, and perjury is never excused by self-defense. As the Supreme Court stated in the Bryson case 50 years ago: “Our legal system provides methods for challenging the Government’s right to ask questions—lying is not one of them.”
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In many religious and moral traditions, bearing false witness constitutes the most serious form of deception and occasions the most dire punishment. Even if the solemn nature of an oath no longer instills fear of eternal damnation, breaking that oath does warrant a felony charge. Among the 4,000-plus federal crimes, at least 300 address various forms of deception. Perjury—willfully making a false statement under oath about facts material to an official proceeding—is the most significant of the federal “dishonesty offenses.” Perjury goes way back: In legal texts from the ancient world and medieval codes, it was punishable by death. In the 16th-century common law that is the precedent for America’s criminal statute, perjury was declared “infamous and detestable.” Since the First Congress, in 1790, lying under oath has been proscribed under federal law, and all 50 states now have statutes criminalizing perjury.
The elements required to prove perjury are stringent and specific. Under Title 18, United States Code, Section 1621, prosecutors must demonstrate that the sworn statement is false, that the lie is willful and deliberate, and that the statement could influence the proceeding. Cases can be difficult to prosecute and prove, because perjury requires clear and direct questions and brazenly untrue responses. The law does not prohibit trivial falsehoods or carelessness, statements that are misleading but “literally true,” or statements that are incomplete and “merely evasive.”
The general perjury statute covers false evidence presented to tribunals other than courts that act with the authority of law, including Congress. Should witnesses lie to Congress, they could later—up to five years later, given the statute of limitations—face a criminal indictment in court. Impeachment proceedings have intersected with perjury charges before. Both President Richard Nixon’s chief of staff, H. R. Haldeman, and his attorney general, John Mitchell, served time in prison for perjury committed before the Senate Watergate Committee. And one of the articles of impeachment against President Bill Clinton arose from his testimony to the grand jury and sworn deposition in Paula Jones’s civil suit.