Wednesday, July 03, 2013

The King's Friends

England in the 18th century had, on paper, essentially the same legal system we do, with its distinction between criminal and civil law—that, after all, is where we got it from. There were, however, some large differences in practice. One of them was that, since there were no police and no public prosecutors for ordinary criminal cases, criminal prosecution was private, in law by any Englishman, in practice usually by the victim or his agent. For details, see my old article Making Sense of English Law Enforcement in the 18th Century.

In discussing the reasons for the lack of state prosecution of crimes—which are, in theory, offenses against the state—one explanation I have offered is that state control of prosecution means that the King's friends can get away with murder, a problem that might have appeared particularly serious after the political conflicts of the previous century.

We are now observing a modern example of the problem. James Clapper, the National Director of Intelligence, has conceded that his answer to a question in Senate testimony was "clearly erroneous." The question was one he had been given in advance, and he was subsequently given an opportunity to correct his answer. The usual term for a false statement made by one who knows it is false is a lie. The legal term for such a statement made under oath, as this was, is perjury.

Any guesses how likely it is that Clapper will be indicted?


At 8:12 AM, July 03, 2013, Anonymous Perry E. Metzger said...

For a while, in the wake of Watergate, the US federal government had a "Special Prosecutor" law, but that ceased to exist when it became clear that neither major political party liked being investigated.

At 10:11 AM, July 03, 2013, Anonymous Anonymous said...

Any guesses how likely it is that Clapper will be indicted?

Never, of course. SOP for government actors.

At 7:18 PM, July 03, 2013, Blogger jdgalt said...

I guess that Obama will pardon him before the next administration can have a crack at charging him.

Fortunately, Obama can't similarly pardon himself.

At 12:18 PM, July 05, 2013, Anonymous Patrick said...


You say Obama can't pardon himself. Are you sure about that? The president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." This seems to include his own offenses, so long as he is not impeached. So if he simply pardoned himself on his last day of office, it would seem he was home free.


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