Yesterday morning I heard Judge Andrew Napolitano interviewed by a local Fox radio talk show about James Clapper. He mentioned something I didn’t know: that lying to Congress is illegal whether or not you are under oath.
So it doesn’t matter if Clapper technically committed perjury (that is, whether or not he was under oath when he lied to Congress) because the penalty is the same.
And we now know that Clapper has admitted that the NSA has not only tracked “metadata” without a warrant, but it has searched the content of emails and phone calls.
According to Newsmax,
James Clapper, director of national intelligence, has confirmed in a letter to Sen. Ron Wyden that the U.S. government has been spying on Americans’ email and phone records without a warrant.
According to the New York Times, which said it had obtained a copy of the March 28 letter, Clapper said intelligence analysts accessed the massive database of records the NSA collected and searched for individual emails and phone records.
So Clapper has now admitted that he lied before.
Of course, for a penalty to be imposed there must first be an investigation, prosecution, and trial.
But that is never going to happen.
A senior House Republican pressed Attorney General Eric Holder Tuesday to prosecute Director of National Intelligence James Clapper for perjury over testimony he gave to a Senate committee last year denying that U.S. intelligence agencies were gathering data on large numbers of Americans.
“What more do you need besides an admission from Gen. Clapper that he lied?” Rep. James Sensenbrenner (R-Wis.) asked, pointing to Clapper’s later remark that his denial was “the least untruthful” answer he could give.
During his appearance before a House Judicial Committee oversight hearing, Holder was noncommittal in his response, declining even to say whether Clapper’s testimony was being formally investigated by prosecutors.
“I’m really not in a position to confirm whether the department is investigating any particular matter,” the attorney general said.
“Is there any circumstance under which you would prosecute a member of the administration for lying under oath to Congress?” Sensenbrenner shot back.
“Sure,” Holder replied, “…if the person lied and all the other legal requirements” were met.
That means he is not going to prosecute Clapper or anyone else.
So then what is the point of Congress passing any law to restrict the NSA? After all, the only way a law makes a difference is if it is enforced—if those who break the law are punished. If the Justice Department is going to give people a free pass, then Congress is just a publisher of useless documents.
However, Sensenbrenner — who has endorsed legislation to end the National Security Agency’s authority to collect bulk data — argued that the Justice Department’s inaction on Clapper’s statement raises doubts about any legal reforms Congress might enact.
“Wouldn’t it be pointless for Congress to pass new laws limiting data collection if the Justice Department and other officials are at liberty to lie about enforcing them?” said Sensenbrenner, a co-author of the Patriot Act.
Exactly. We are already at the point that, to some extent, the legislature simply exists to provide PR cover for an autonomous executive branch.