Lying to Congress: Time for New Law

Legal Times
January 11, 1993

Some of us used to think it was pretty clear that lying to Congress is a crime. After all, even Ronald Reagan conceded the point. And the Supreme Court has so held.

But it's apparently not clear enough, and restorative work by Congress and the incoming Clinton administration is needed. As evidenced by President George Bush's smarmy apologia for executive-branch lying in his Christmas Eve pardons of six Iran-Contra defendants, any consensus that such conduct warrants prosecution has been shaken by the bitterly partisan inter-branch warfare of recent years.

The six-year-long conservative crusade to trivialize and misrepresent the lying-to-Congress prosecutions of the Iran-Contra defendants and to demonize Independent Counsel Lawrence Walsh has obscured what is ultimately at stake here: the rights of the American people, through their elected representatives, to demand and receive an honest accounting of what their government is doing.

At first, apologists for the Iran-Contra liars concentrated on distorting the facts by suggesting, preposterously, that they had not lied to Congress at all. Now President Bush, in styling the convicted and accused liars whom he pardoned as patriotic victims of "the criminalization of policy differences," seems implicitly to espouse something like a privilege for executive-branch "combatants" in the "political arena" to deflect congressional inquiries by lying.

It has become a kind of covert conservative credo that executive-branch lying to Congress (not to mention the press) is not really a crime. Conservative commentator Terry Eastland comes close to saying so directly, in a thoughtful article contending that it is "unjust ... to apply the criminal law to individuals who in the course of representing the executive branch especially over highly disputed policies are said to have lied to Congress."

Eastland's argument deserves to be taken seriously, both on its merits and because the Walsh experience shows how difficult it is in the current legal and political climate to prosecute otherwise sympathetic officials who lie to Congress in the course of divisive policy struggles.

It's true, as Peter Morgan of D.C. 's Dickstein, Shapiro & Morin has pointed out in a scholarly article, that before Iran-Contra, no executive-branch official had ever been criminally charged with unsworn lying to Congress about policy matters, and few had been charged with lying under oath. This dearth of pre-Walsh prosecutions cannot be attributed to any dearth of deception. Numerous instances of executive-branch lying to Congress, most involving foreign affairs, came to light in the administrations of Lyndon Johnson, John Kennedy, Dwight Eisenhower, Franklin Roosevelt, and earlier presidents. But in those days, there was none of the clamor for prosecution from Congress and the press that is now so routine.

What has changed is that the past three decades brought Vietnam, Watergate, assassination attempts by the Central Intelligence Agency, the collapse of public trust in presidents and other officials, the breakdown of bipartisan consensus on foreign policy, the end of congressional acquiescence in executive-branch intrigues abroad, and increasingly bitter warfare between Republican presidents and congressional Democrats. Congress responded by restricting presidential war powers and covert operations, demanding ever more information, and passing the now expired independent-counsel statute to curb the attorney general's discretion to wink at high-level crimes. The importance of executive-branch candor to the proper functioning of our government has become apparent, but institutional efforts to ensure such candor have had a painful evolution.

The wisest congressional and Clinton administration response to the Bush pardons would be not a long, divisive rehash of the Iran-Contra mess, but rather construction of a bipartisan consensus for new law erasing any doubt that lying to Congress (or its committees) is a serious crime. Officials should be put unmistakably on notice that such lies will be prosecuted.

Building such a consensus is doable. With a Democrat who has been derided by opponents as "Slick Willie" taking over the executive branch, the importance of keeping the executive honest may become apparent even to those Republicans who have so ardently championed Iran-Contra liars. Let's call upon George Bush and other prominent Republicans (especially those with presidential ambitions) to testify publicly whether they really think it's OK for executive-branch officials to lie to Congress. And let's call upon the Democrats to show that their past demands for executive-branch candor were more than a partisan strategem.

The problem is not so much any doubt that lying to Congress is a crime under current laws as it is the lack of a clear public or legislative mandate for strict enforcement of those laws. The perjury statute has long barred false testimony under oath to congressional panels. And unsworn lying to Congress is also a felony, under a 1955 Supreme Court interpretation of Section 1001 of the federal criminal code. That vague, sweeping statute, which bars intentionally false statements in "any matter within the jurisdiction of any department or agency of the United States," was passed in 1934 primarily (and, indeed, exclusively, according to Peter Morgan's critique of the Supreme Court decision) to prosecute people who lie to defraud executive-branch agencies.

Walsh has relied heavily on Section 1001 in his Iran-Contra prosecutions, since many of the defendants' lies and alleged lies came in letters and in testimony that were not taken under oath (as is all too commonly the case in Congress), and thus could not be prosecuted as perjury.

Critics like Eastland and Morgan (a liberal Democrat who represented two Iran-Contra defendants) question this use of Section 1001-because of its novelty, because it is based on questionable judicial extensions of a vague statute, and because officials are not always put clearly on notice that any unsworn lies to Congress are just as criminal as false testimony under oath. Morgan adds that "no one knows where this crime ends"-whether, for example, it could be stretched to encompass false statements in a presidential press conference or budget message, or in a casual phone call between the White House and congressional aides. New legislation would drive home the duty of executive-branch officials to tell Congress the truth and make the boundaries of that duty clear. Congress should also specify-as existing case law does not-that the laws against lying to Congress extend to all intentionally deceptive statements in responses to official inquiries, even if some rationale can be contrived for claiming that the statements were not literally false. This calls for careful legislative drafting; officials should not be at peril whenever they fail to volunteer all the information that Congress might want to have. But they should be required to answer questions with candor, rather than with misleading evasions designed to throw easily misled congressional questioners off the scent.

Time after time, Iran-Contra defendants have taken refuge behind the strained rationale that their evasive answers to congressional inquiries were not literally false. One example: Former State Department official Elliott Abrams, whose two plea-bargained misdemeanor convictions were pardoned by President Bush, has steadfastly defended his Oct. 14, 1986, briefing of the House Intelligence Committee, when he dismissed as "false" the reports that one or more foreign governments "was helping" to supply the Contra rebels. At the time, Abrams had personally solicited $10 million for the Contras from a representative of the Sultan of Brunei and had been told that the Sultan had agreed (under a promise of confidentiality) to send the money to a numbered Swiss bank account designated by Abrams.

In his recent book, Undue Process, Abrams defends his answer this way: "[W]e had not yet received a dime from Brunei.... [I]t was therefore accurate to say no foreign government at that time 'was helping.' "

Slippery as it seems, Abrams' argument might fly under current case law. Let's put future Elliott Abramses on notice that they should honor any obligations of confidentiality the old-fashioned way-by claiming executive privilege-and that resorting to elaborate evasions risks slammer time.