Saturday, July 13, 2013

James Clapper and the Issue of Selective Prosecution

As I pointed out in a recent post, James Clapper, the National Director of Intelligence, is pretty clearly guilty of perjury for lying under oath in Senate testimony. As I implied in that post, the chance that he will be charged with perjury, let alone convicted, is very close to zero. Perjury is a crime, crimes in our legal system are prosecuted by the state, so crimes committed by state agents on behalf of their employers are unlikely to be prosecuted.

The implication of that post was that this is a bad thing, but it isn't entirely clear. To begin with, in a world of limited resources and very broad criminal law, the government cannot, in practice, prosecute every crime it has reason to believe exists. Obama, at various points in the past, strongly implied that people selling marijuana in ways consistent with state medical marijuana laws would not be targeted by federal law enforcement, although their activity was in violation of federal law. While I would prefer that the federal law be abolished, that struck me at the time as at least a small step in the right direction, and I wish he had kept that particular commitment.

In Clapper's case the arguments would be somewhat different—the federal government has, after all, devoted substantial resources in the past to prosecuting similar acts of perjury by prominent private individuals. But it seems likely that Clapper believed, not unreasonably, that committing that particular crime was part of his job, justified by the need to keep secret what he regarded as an important set of intelligence operations. Refusing to answer the question would have made it reasonably obvious what the answer was. It is possible that he could have evaded the question in some less obvious way, having been notified in advance that it was coming, but perhaps he saw no way of doing so. Do we want to jail loyal Americans for serving their country to the best of their ability—when doing so requires them to break the law? 

As it happens, I raised a closely related question in my second novel. The context is a conversation between Prince Kieron, brother and heir of the king and royal official in charge of dealing with magery, and Ellen, my female protagonist, who has caught one of Kieron's agents engaged in an illegal use of magic and can prove it. 

The Prince remained silent for a moment, thoughtful.
"I remember the lecture and I concede the justice of your point. The King is not above the law. Nonetheless, I will not promise never to violate bounds or law myself, nor will I promise to instruct my servants never to do so. Law-breaking is a bad thing, whether by the King's servants or anyone else, but there are worse things, some of which it is my responsibility to deal with. I will promise not to violate bounds or law save in the most extreme circumstances, and to do my best to see that my servants will not, so that incidents such as the two you have described do not occur again. If my people are charged, as Fieras was, I will do my best to see that they get an honest trial.
I am sorry, but that is the most I can offer ...


At 9:15 AM, July 13, 2013, Anonymous Anonymous said...

"Do we want to jail loyal Americans for serving their country to the best of their ability—when doing so requires them to break the law? "

Interesting question. I can think of someone besides Clapper in the news recently to whom it more appropriately applies...

At 9:17 AM, July 13, 2013, Anonymous Anonymous said...

you also forget that the courts do not want to find the the state (specifically police) in the wrong too often because the courts realise that if police were to be found to have committed a tort (or a crime) during their carrying out their duty of policing that would create an incentive for police to be less eager to police the next time they find themselves in a similar situation.

so the courts realise that the state has monopoly of power and monopoly on policing, so if the state is prevented from policing there is no one else to pick up the slack in supply of policing.

if the courts could see alternatives to state run police, they would probably more often find police in the wrong.

so EVEN IF clapper is prosecuted the court has an incentive, a strong incentive, not to find him guilty.

literally our society has created a situation where state agents do not operate under the same laws as normal people.

At 12:10 PM, July 13, 2013, Anonymous Patrick R. Sullivan said...

The Clapper statement can be interpreted in different ways, which makes a perjury prosecution problematical. Fortunately there are far more clear cut cases of prosecutorial discretion being abused available. Say, what's going on in Florida with Georgia Zimmerman.

The last word we've heard in that case was one of the prosecutors urging the jury to 'look into the human heart' rather than to the evidence in the case, in deciding guilt or innocence. Rather telling as to how he viewed the strength of his case, I'd say.

And, now the Florida state Special Prosecutor has fired a man who informed the defense counsel that the prosecutors were withholding exculpatory evidence gleaned from the 'victim's' cell phone. Obviously such a person can't be trusted to be loyal to the state.

At 5:32 AM, July 14, 2013, Anonymous bruce said...

Justinian said a perfectly just law, enforced perfectly, would create perfect injustice.

George Macdonald Fraser said any system of government depends on the governors 'playing the game'.

At 6:26 AM, July 14, 2013, Blogger RJM said...

> The implication of that post was that this is a bad thing

Funny, I didn't read that post that way. Or at least I did not think along the lines:
"A state agent is not charged for a criminal action, thus there is another indication of how bad the system is for everyone"

They way I read it: This is how the systems works. There is state and there are state agents. There is the law and there are "lawbreakers" among the state agents. Certain inconsistencies arise when the state law is understood as a general law and state agents are understood as equal human beings. This is just one example of inconsistency related to the way power and coercion works.

Now the turn in this post causes some irritation for me. Well, of course it can be a good thing in one way or another that state agents "break" the law.
My guts tell me, in that case we make a step away from clear and simple ethics and end up in the obfuscated realm of state ethics, where there is always a way to legitimate criminal behaviour (starting with taxation).

What helps me there: whether or not a state agent obeys the (state) law is not inside the scope of my influence. Thus debating the good or a bad of state agent's actions is not so much of concern for me. The laws of (stateless) ethics, on the contrary, are interesting for me.

At 7:34 AM, July 16, 2013, Anonymous Laird said...

"Do we want to jail loyal Americans for serving their country to the best of their ability — when doing so requires them to break the law?"

Short answer - yes. This is on a par with the "we have to destroy the village to save it" argument; if we have to break the law to preserve it what is the point of having law?

I posit that it is more important to punish government officials who lie to Congress (which is, after all, in a proper position of oversight) than it is to punish ordinary citizens. If Clapper can get away with blatant, and admitted, lies to Congress what does that say about our government? Why should anyone trust anything they say?

Congress wasted untold hours hectoring Roger Clemens about steroid use (an issue with which it had no legitimate institutional interest), ultimately resulting in a perjury charge (of which he was eventually acquitted). Martha Stewart served several years of jail time for the "perjury" of lying (supposedly) to an FBI agent when she was not even under oath. Yet we're supposed to ignore Clapper's lies (or, for that matter, Eric Holder's)? That is the end of the rule of law.

If someone legitimately believes that he must lie for the good of the country, we can admire his courage but he must be willing to accept the consequences. And I, for one, don't believe for a minute that Clapper's lies were motivated by patriotism (at least, not as most of us conceive it), but rather by the desire to advance the interest of expanding government power. In a free country that is the antithesis of patriotism.

At 7:42 AM, July 16, 2013, Anonymous Laird said...

In my last post I had intended to include a quote from Judge Brandeis:

"In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipotent teacher. For good or ill, it teaches the whole people by its example. If government becomes a lawbreaker it breeds contempt for law: it invites every man to become a law unto himself. It invites anarchy."

That says it all.


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