On Tuesday, a federal jury convicted former vice-presidential aide I. Lewis “Scooter” Libby of two counts of perjury, one count of making false statements, and one count of obstruction of justice. In an “Explainer” column printed when Libby was first indicted in 2005 and reproduced below, Daniel Engber went over the differences among these three crimes.
On Oct. 28, a special prosecutor indicted now-former vice-presidential aide I. Lewis “Scooter” Libby for deceiving federal investigators and a grand jury. Among the charges against him: two counts of perjury, two counts of making false statements, and one count of obstruction of justice. What’s the difference between these crimes?
In this particular case, very little. The perjury counts allege that Libby “knowingly made a false declaration” to the grand jury when asked about conversations he’d had with Tim Russert, Matthew Cooper, and other reporters. The false-statements counts say he “did knowingly and willfully” make “materially false, fictitious, and fraudulent” statements to FBI agents about conversations with Russert and Cooper. And the obstruction count alleges that Libby made “materially false and intentionally misleading statements” to the grand jury about conversations he’d had with Russert, Cooper, and Judith Miller.
How is perjury different from making false statements? To commit perjury, you have to be under oath, and you have to knowingly fib about something that’s relevant to the case at hand. (Your statement must also be literally false—lies of omission don’t count.) In contrast, you can break the false-statements law by lying about an issue that’s “within the jurisdiction of the executive, legislative, or judicial branch of the Government,” even if you’re not under oath. The false-statements law is worded so broadly that it can apply to almost any interaction a private citizen has with the government; in practice, it’s typically used against people who lie to federal investigators or who file false documents with government agencies.
It gets more complicated. In Libby’s indictment, prosecutors used the term “perjury” in a colloquial sense. In fact, he is charged with breaking 18 U.S.C. § 1623—or, the “false declarations” law—rather than 18 U.S.C. § 1621, aka the perjury law. The two are very similar, but false declarations tend to be easier to prove. For one thing, perjury convictions must be based on evidence from at least two witnesses; false declarations can be proved without any witnesses. Prosecutors can show that Libby made “false declarations” simply by showing that his statements to the grand jury were inconsistent. (As with perjury, false declarations must be knowingly made and about an important issue.)
What about obstruction of justice? You’re guilty of obstruction if you do anything that hampers an ongoing case—destroying documents, intimidating witnesses, or lying under oath, for example. (Some courts have ruled that lying under oath is not sufficient for conviction on its own, though.) As with the other charges, prosecutors must show that an act of obstruction has significant bearing on the proceeding. According to the Supreme Court, it must have the “natural and probable effect” of interfering with the case.
When a witness lies under oath about an important topic, it almost always interferes with a prosecutor’s case. That’s why charges of perjury (or false declarations) often come with charges of obstruction. In the Libby indictment, the obstruction count refers to the same conduct as the perjury counts, with one or two extra examples thrown in—like the fact the he allegedly lied about Miller, too. The added material might represent an attempt on the prosecutor’s part to show that Scooter worked out a broad scheme to deceive the grand jury.
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Explainer thanks Sara Sun Beale of Duke University and Stuart Green of Louisiana State University.