by David G. Mills
August 2, 2003
Now that John Dean has written his second recent article suggesting that the present President of the United States, George Bush, may have perpetrated a fraud upon Congress and the American people, it has occurred to me that the average layman may not have an adequate appreciation of the differences between the concepts of lying/perjury and fraud/deceit. Since these concepts are fundamentally different to lawyers, and given the present political climate, it might be worth examining the differences. The complaints concerning the actions of our past President, Bill Clinton, are of actions more in line with the concepts of lying/perjury; while the complaints concerning the actions of our present President, George Bush, are of actions more consistent with those of fraud/deceit.
Lying, or making a statement which is false, is only rarely a matter of criminality. People lie every day and because lying is so pervasive, the law, as a practical matter, can do little to stop this common behavior. Even lying in court is unfortunately, a common occurrence. If you have ever listened to a divorce case, you know that both the husband and the wife cannot be telling the truth about everything. Sometimes the stories are so different, one wonders whether the parties were cohabitating on the same planet, much less in the same bedroom. By and large, around the country, juries and judges are left to figure out whose story is most believable and there are no legal ramifications for lying, other than losing the case when the judge or jury thinks a litigant’s lies deserve his losing.
Technically, however, under some circumstances, lying in court reaches the level to where it can become a case of its own, and this is what we lawyers call perjury. To reach this level, the falsehood must be “material.” In practical terms, this means that the lie must be of such a nature that if believed, it could cause the jury or judge to render an improper verdict or decision. Lying about the color of a car, for example, may not be material in one case and very material in another. If the car happens to be a “getaway car, ” the lie could be very material because a judge or jury might be inclined to make the wrong verdict or decision based on the lie. But in many cases such a lie would be totally incidental and have no effect upon the outcome of the case and would be immaterial.
In President Clinton’s case, the legal question was whether his lie under oath, during a deposition, about having sex with Monica Lewinsky, reached the threshold of “materiality.” Legal scholars of course disagreed as to whether it did or did not. My personal belief is that President Clinton’s lie was not a “material” falsehood for two reasons: (1) ordinarily, past similar behavior, or subsequent similar behavior, of the type that is alleged to have occurred, is not admissible to show the behavior was more likely to have occurred; and (2), Monica Lewinsky appeared to be the aggressor in her relationship with President Clinton, not vice versa, and generally in a sexual harassment case one must show that the harasser was the aggressor. The Monica Lewinsky matter, as far as I know, did not show any tendencies on the part of President Clinton to be the aggressor or implicate him as a sexual harasser in that affair.
Furthermore, what can be asked in a deposition is often far broader than what can be asked during trial. Any question “ which could lead to admissible evidence” can be asked during a deposition. Many a lawyer has sat through a several hour deposition of a witness, only to have the witness testify for 15 minutes at the trial. Much of what is asked during a deposition is irrelevant and immaterial. Thus, in my view, it is likely that had Clinton’s sexual harassment case gone to trial, the jury would have never have heard anything about Monica Lewinsky because the entire matter would have been inadmissible. Therefore, the lie could not have been material. Many may say I am being too technical; but perjury is a very technical crime. Many people disagreed with such an analysis on the issue of whether President Clinton’s lie was material, and the belief of those who disagreed with such an analysis became the basis for President Clinton’s impeachment. But it was never clear to me (other than politics) why or how such people believed such a lie would be material. I remain truly skeptical.
Nevertheless, for comparison purposes with the crime of fraud/deceit, the legal point I would like to make about the crime of perjury is this: as long as a statement is “technically” true, (materiality only matters if a statement is false), perjury has usually not been committed. Due to the fact that witnesses have no control over the questions they are being asked, witnesses have little or no control over whether a “true” answer may imply something other than the real facts. Often, explanations are not allowed; one is simply asked, especially on cross-examination, whether a statement is true or not. Few witnesses actually get to tell the “whole truth and nothing but the truth.” The question and answer system severely limits a witness’s ability to tell the “whole truth and nothing but the truth” in his own words. Therefore, in a perjury case, the emphasis of the crime is usually on the truth or falsity of an actual statement, not the truth of its implication, since a witness has so little control over the statement’s implication.
This is not the case with the crime of fraud/deceit. “Technical” truth is not a defense to the crime of fraud/deceit. In the crime of fraud/deceit, the emphasis of the crime is on the implication of the statement, not its literal truth. Many fraudulent statements are “technically true” as far as they go, but are designed to give a false impression of the real situation. Also, they generally occur when the speaker has full control of the situation and of the language being used. The crime of fraud/deceit has three key elements: (1) a statement by the perpetrator which has a false implication, (2) the listener’s reliance upon that which appears to be the truth and takes action based upon this reliance, and (3) the listener’s action causes harm to the listener, or harm to others, when the listener takes the action expected of him. An outright false statement has a false implication, but so does the more deceitful “half-truth,” “technical truth,” or “literal truth.” To be fair, frauds are also unfortunately common, and usually, only the most egregious frauds are prosecuted.
Using a car analogy, again, lets look at a “classic” fraud/deceit case. Suppose a car salesman makes a statement that he has been told by a shade-tree (shady) mechanic that a certain car for sale only needs a tune up. The salesman has also been told that the engine needs a valve job, but by a far more qualified mechanic whom the salesman trusts. The salesman omits what he knows about the necessity of a valve job. The buyer, believing the car only needs a tune up buys the car and the car, does in fact, need a valve job. Have the three elements of fraud been satisfied? The salesman’s statement may have been technically true but he knew that its implication was false. The buyer relied upon what appeared to be the truth of the statement and bought a car he probably would not have bought otherwise (at least not for the same price). And finally, the buyer bought a lemon and was harmed by the purchase. So, yes, the elements of fraud have been met. This example of fraud might very well go unprosecuted. Why? In such a case, the amount of money involved, and the number of persons involved, are not likely to get the average prosecutor’s blood boiling.
But the deceits of the present President, George Bush, should get every prosecutor riled. They are not trivial. It has been said that the modus operandi of the Bush Administration is to make statements that are “half-truths” or “technical truths” or “literal truths” that are designed to imply something other than the real set of circumstances. (For an excellent discussion of these deceits, see Walter Williams’ article “A Pattern of Deception”). The American public is then expected to rely upon what appears to be the truth and to act accordingly. If the American public does so, the first two elements of fraud/deceit have been established. If, or when, the American public has done so to its detriment or to the detriment of others, the third element of the crime has been established.
Using the foregoing elements of fraud/deceit, let’s apply a fraud/deceit analysis to just one of the complaints, President Bush’s statement in the State of the Union Address concerning the Niger incident. President Bush stated that the “British had learned” that the Iraqi government was attempting to get uranium from Africa. That statement was technically true, but the implication of the statement was something vastly different than the real facts. A reasonable person, upon hearing this statement would be inclined to believe there was good evidence to conclude the Iraqi government was attempting to acquire uranium from an African country to acquire nuclear weapons. But the truth of the matter was that the Bush Administration had very good evidence to the contrary of what Britain had learned, that the Administration had been warned that the claim was bogus, that no such thing had taken place, and that there had been no attempt by the Iraqi government to acquire uranium from Niger, the African country to which President Bush had alluded.
I must conclude, as does John Dean, that this statement was intended to deceive. If there were such a thing as a “classical” fraud “set up” this would qualify, and establish the first element of fraud. Did the American public rely on the implication of this statement, which was that Saddam was attempting to acquire nuclear weapons, and was the implication false? I would think so, since we went to war and we know now that the implication of the statement was false. If we are in agreement on this point, then the second element of fraud has been established. Did we go to war to our own detriment or the detriment of others? When has war not been a detriment to the citizens of the countries involved? The sheer financial cost of this war would be detrimental to most of us, not to mention loss of life, or of American prestige, any of which, would establish element number three.
No doubt there certainly are many thousands, perhaps millions of Americans, who feel that they have been deceived by many statements of the Bush Administration. There are many instances where the actual facts of a given situation turned out to be far different than the administration implied them to be. (The claim of biological and chemical WMD is just another example). Pick any statement of the President that galls you and apply these legal steps. How many frauds can you come up with? With his administration, it’s not just an isolated incident; it is a pattern of practice.
I agree with John Dean on another point. Defrauding a country into war is a much more serious crime against the country than even clearly committing perjury about sex. Who were the victims in the Clinton/Lewinsky scandal? It is hard to point to any individual that was seriously victimized by it, other than those people closely connected to the case. To the extent that the scandal diminished the judicial system, if it did at all, then maybe we all were nominal victims. But the war with Iraq and the huge cost in military spending, the lives of our dead and injured soldiers, the lives of the dead and injured Iraqis, the loss of the prestige of America, are not nominal injuries to any one of us. If this doesn’t rank as egregious fraud, what does? We are all serious victims of this deceit. If defrauding a country into war is not a “high crime or misdemeanor,” I don’t know what kind of crime qualifies.
But like all victims, the question is whether deceived Americans will do anything about it. It takes real courage to swear out a complaint against a fellow citizen, and all too often, it is just easier to move on and do nothing. It takes real courage for citizens to stand up to their President’s deceits when they are being accused of being anti-American, unpatriotic, unfaithful to the party, or partisan. So how about it America? Are you feeling defrauded or deceived into war? Feeling gullible for buying the sales job? Feeling that the cost of this war is unjustified? Feeling like a citizen of an occupying power, rather the liberator you were led to believe you would be? If so, Americans, do you have the courage to do the right thing, to support and insist on the impeachment and conviction of the President of the United States?
David G. Mills is an attorney who practices law in Memphis, Tennessee. He is licensed in Texas and Tennessee. Permission is granted to use this article anywhere as long as proper credit is given. He may be contacted at: firstname.lastname@example.org.