PERJURY

A crime that occurs when an individual willfully makes a false statement during a judicial proceeding, after he or she has taken an oath to speak the truth.

Detroit Mayor Kwame Kilpatrick Charged with Perjury

Kwame Kilpatrick, the embattled mayor of Detroit, Michigan, was indicted in March 2008 on charges of perjury, obstruction of justice, misconduct in office, and several other felony charges. The charges stem from false testimony given in August 2007 about a relationship that Kilpatrick had with his former chief of staff.

Kilpatrick is the son of U.S. Congresswoman Carolyn Cheeks Kilpatrick (D.-Mich.).

He earned a law degree from Michigan State University (though he did not practice law) before being elected to the Michigan House of Representatives in 1996. Five years later, Kilpatrick became the youngest mayor in the history of Detroit when he was elected to the position at the age of 31 in 2001. His terms in office have been filled with a series of controversies.

During 2002 and 2003, Kilpatrick and his chief of staff, Christine Beatty, had a sexual affair while both were still married. During this relationship, they shared thousands of text messages. Kilpatrick for several months denied that he had a relationship Beatty, emphasizing that he is a strong family man with a wife and three sons. Beatty divorced her husband in 2006.

Two former police officers filed suit against the city in a whistleblower suit. Harold Neithrope was a former police bodyguard who alleged that the mayor and other bodyguards had misbehaved. Former deputy police chief Gary Brown investigated the claims. A jury award Neithrope and Brown $8 million in damages, including interest.

Kilpatrick and Beatty both testified at Neithrope's and Brown's trial in August 2007. Both denied having a romantic or sexual relationship. According to the Detroit News, Beatty denied the affair at least ten times on the witness stand. Moreover, Kilpatrick and Beatty both said that they did not engage in a plot to fire Brown.

Text messages between Kilpatrick and Beatty became the focal point of a subsequent investigation. During Kilpatrick's first term in office, he issued a directive indicating that electronic communications submitted on city equipment should not be considered private or personal. These messages were thus stored electronically and could be retrieved. City attorneys argued, though, that the messages between Kilpatrick and Beatty were private and could not be released to the public.

The attorney for Neithrope and Brown obtained the text messages during the litigation. The Detroit Free Press fought through Freedom OF Information ACT litigation to obtain these exchanges, but Kilpatrick fought diligently to prevent the release of the messages. Documents revealed that Kilpatrick approved a payout of $8.4 million to the officers so that the messages would not become public.

Nevertheless, in January 2008, the newspaper obtained copies of 14,000 messages between Kilpatrick and Beatty. Many of the messages were highly personal in nature and revealed that they had both a romantic and sexual relationship during the period of time that the messages were sent. In one exchange, both indicated that one was “madly in love with” the other, and the messages indicated that they had arranged numerous trysts. Moreover, the messages indicated that they had discussed dismissing Brown, which stood in contrast to their sworn testimony that they had not plotted to fire the deputy police chief.

On March 18, 2008, the Detroit City Council approved by a vote of 7–1 a resolution calling for Kilpatrick's resignation. Kilpatrick said that the resolution was irrelevant and that he would not resign. The resolution cited 33 grounds for Kilpatrick's resignation, noting that he “repeatedly obfuscates the truth.” The statement concludes that “there is an overwhelming and growing sentiment amongst citizens of Detroit that the City Council should stand firm against Mayor Kilpatrick and seek his resignation.” Kilpatrick stood firm, however, saying that he would continue to work with the city council as mayor.

About a week after the city council passed its resolution, Kilpatrick became the first mayor in the history of Detroit to face criminal charges. A twelve-count complaint charged Kilpatrick and Beatty with perjury, conspiracy to obstruct justice, obstruction of justice, and misconduct in office. Wayne County Prosecutor Kym Worthy announced the decision to prosecute Kilpatrick during a 34-minute speech.

“Even children understand that lying is wrong,” Worthy said. “Honesty and integrity in the justice system is everything. This is what this case is about.” She continued, “Some have suggested that the issues before us are personal or private. Our investigation has clearly shown that public dollars were used, people's lives were ruined, the justice system was severely mocked, and the public trust trampled on.” Worthy noted that the two had ruined the lives of Neithrope and Brown, as well as a third officer who had also filed suit in a related case.

Kilpatrick responded that he was “deeply disappointed” in Worthy's decision to prosecute him. “This has been a very flawed process from the very beginning,” he said. “I look forward to complete exoneration once all the facts surrounding this matter have been brought forth. In the meantime, I will remain focused on moving the city forward.”

On May 9, state representative David Law introduced a resolution calling for Michigan Governor Jennifer Granholm to remove Kilpatrick from office. According to the statement, “Public trust is the cornerstone of a democracy and the city of Detroit is crumbling. The mayor's refusal to leave office is affecting the city's ability to run effectively, and I am calling on the governor to make a change for the best interests of Detroit and its neighboring communities.” Kilpatrick responded by reiterating that he will not step down. He faces up to 15 years in prison per count.

Scooter Libby Convicted of Perjury in CIA Leak Case

The prosecution of I. Lewis “Scooter” Libby, former chief of staff to Vice President Dick Cheney on charges including obstruction of justice, false statements, and perjury culminated in a Washington, D.C. jury convicting Libby of these crimes on March 6, 2007. The case, which centered on the Bush Administration's efforts to discredit ambassador Joseph C. Wilson, involved leaking to the press the fact that Wilson's wife, Valerie Plame, was an intelligence agent for the Central Intelligence Agency (CIA). Though early in the investigation of the leak President GEORGE W. BUSH stated he would fire anyone involved in disclosing Plame's identity, he did not fire his trusted political advisor Karl Rove. Instead, Bush commuted Libby's 30-month prison term. On another front, Wilson and Plame's civil lawsuit against Cheney, Libby, Rove and ten other unnamed government officials was dismissed by a federal district judge in July 2007.

The case grew out of President Bush's 2003 State of the Union address, in which he tried to bolster support for invading Iraq. During his speech, he state that “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” This claim became the subject of extensive debate after reporters learned that the statement contradicted the findings of former ambassador Joseph Wilson, who had visited Niger in February 2002 at the direction of the government. Journalists pursued this story for months and on July 7, 2003 Wilson published an op-ed piece entitled “What I Didn't Find in Africa.” In the piece he said that “some of the intelligence related to Iraq's nuclear weapons program was twisted to exaggerate the Iraqi threat.” Soon after publication of this article the White House began an effort to discredit Wilson, telling selected reporters that Wilson's wife, Valerie Plame, was a CIA operative and that she was involved in sending her husband to Africa. On July 14, syndicated columnist Robert Novak revealed Plame's identity as an intelligence agent, attributing the information to two “senior administration officials.” Three days later, three reporters for Time wrote that government officials had disclosed Plame's identity to them.

In September 2003 the Department of Justice named U.S. Attorney Patrick J. Fitzgerald to conduct an independent investigation of the leak of Plame's identity. A federal law makes it a crime to knowingly reveal the name of a CIA undercover operative. In addition, individuals given access to classified information are prohibited from sharing it with unauthorized persons. In late October 2005, Libby was indicted by a federal grand jury on one count of obstruction of justice, two counts of making false statements, and two counts of perjury. He resigned as chief of staff and pleaded not guilty to the charges on November 3. Fitzgerald said that Libby had intentionally deceived authorities. Karl Rove, who appeared before the grand jury five times and who was named as another leaker of Plame's identity, was not indicted.

Prior to the start of Libby's trial in January 2007 trial, former Deputy Secretary of State Richard Armitage admitted that he was the one who leaked Plame's identity to Washington Post report Bob Woodward and columnist Novak. After this disclosure Novak revealed that Rove had contacted him about Plame as well. Shortly before the beginning of the trial Libby's lawyers indicated that Vice President Cheney would testify in Libby's behalf. At trial the defense sought to cast doubt on the credibility of reporters who testified that Libby had contacted them about Plame and it suggested that the White House had sought to protect Karl Rove and make Libby the fall guy. Neither Libby or Cheney testified at the trial. On March 6, 2007 the jury convicted Libby of four of the five charges, including perjury and obstruction of justice. On June 5 U.S. District Judge Reggie Walton sentenced Libby to 30 months in prison, a $250,000 fine, and probation. The judge also ruled that Libby could not remain free on bond while he appealed this conviction. On July 2 President Bush commuted Libby's prison term but left the fine and probation components untouched. Libby also remained a convicted felon. Though Libby did appeal his conviction, he dropped it in December 2007. His lawyers stated that continuing the appeal would unduly burden Libby and his family.

Plame and Wilson were outraged over the commutation and received more bad news when their federal civil lawsuit was dismissed two weeks later. The lawsuit accused Vice President Dick Cheney and others of conspiring to leak Plame's identity, which violated her privacy rights and was illegal retribution for her husband's criticism of the administration. U.S. District Judge John Bates dismissed the case on jurisdictional grounds and declined to express an opinion on the constitutional arguments made by the plaintiffs. Bates concluded Cheney, Rove, Libby, and Armitage were acting within their job duties. Plame had argued that what they did was illegal and outside the scope of their government jobs. “The alleged means by which defendants chose to rebut Mr. Wilson's comments and attack his credibility may have been highly unsavory, “Bates wrote. “But there can be no serious dispute that the act of rebutting public criticism, such as that levied by Mr. Wilson against the Bush administration's handling of prewar foreign intelligence, by speaking with members of the press is within the scope of defendants' duties as high-level Executive Branch officials.” Plame and Wilson appealed the decision, which was heard by the U.S. Court of Appeals for the DISTRICT OF COLUMBIA Circuit in May 2008. Plame also published in 2007 Fair Game: My Life as a Spy, My Betrayal by the White House, a book describing her view of the entire affair.

PERJURY

The American legal system, like most legal systems, relies heavily on the testimony of witnesses. Juries rely on witness testimony to reach verdicts in criminal and civil trials; grand juries rely on witness testimony to investigate crimes and to bring criminal charges; Congress relies on witness testimony in its legislative hearings; and a wide range of administrative agencies rely on witness testimony in making both policy decisions and rulings in specific matters. The decisions of each of these bodies are only as reliable as the witnesses appearing before them. The law making perjury a crime is one effort to encourage witnesses to be truthful.

Perjury at common law

Although false swearing or "bearing false witness" has been considered a spiritual offense since at least biblical times, perjury did not become a secular crime in England until much more recently. In the Middle Ages, witnesses as we know them did not exist. The witnesses were the jurors, and so it was the verdict, not a particular witness, that was either true or false. Correspondingly, it was the jurors, not the witnesses, who would be punished for a "false" or "perjurious" verdict. By the sixteenth century, when the modern trial by an independent and impartial jury began to emerge, perjury by witnesses also came to be punished separately, first by the Court of Star Chamber and later by English common law courts. By the mid-seventeenth century, common law perjury was defined as swearing falsely, under oath, in a judicial proceeding, about a material issue. This same definition of perjury was generally incorporated into early American common law and statutes.

Modern perjury statutes

Each of the fifty states has its own perjury statute, and federal law contains two general perjury provisions (18 U.S.C. §§ 1621, 1623). Although differences abound among these statutes, most modern perjury statutes have four elements: (1) the statement must be made under oath; (2) the statement must be false; (3) the speaker must intend to make a false statement; and (4) the statement must be material to the proceeding. Each element must be proven by the prosecution beyond a reasonable doubt.

Oath. The oath may take many different forms, so long as it contains a solemn declaration to tell the truth. It must, however, be administered by a person legally authorized to do so and in a setting in which the oath is authorized to be administered. The oath can apply both to oral testimony and to written declarations made under the penalties of perjury.

Falsity. To be perjurious, a statement made under oath must be false. Thus, a perjury conviction cannot be based upon a statement that is so vague or ambiguous that it cannot be considered affirmatively false. Similarly, as the Supreme Court held in Bronston v. United States, (409 U.S. 352 (1973)), a statement that is misleading, but not actually false, cannot lead to a perjury conviction. In that case, the defendant Bronston had testified under oath in a bankruptcy hearing, during which he was asked whether he had ever had any Swiss bank accounts. Bronston responded that his company had once had a Swiss bank account. Although Bronston's response was literally true, it was misleading because it suggested that Bronston had not had a personal Swiss bank account, which he had. The Supreme Court nevertheless held that Bronston could not be prosecuted for perjury because his answer, even if deliberately deceptive, was not actually false. While the Court did not condone Bronston's misleading testimony, it reasoned that it was the questioner's responsibility to ensure that Bronston's answers were not ambiguous or non-responsive.

Intent. To be guilty of perjury, a defendant must do more than make a false statement under oath. The defendant must also intend to do so. Sometimes referred to as "scienter," this intent requirement is expressed in various ways. The federal perjury statutes require the false statement to be made "willfully" or "knowingly." Other state statutes require the statement to be made with an intent to mislead or with a belief that the statement was untrue. The intent requirement means that an "honest mistake" or an unknowing falsehood cannot be perjurious.

Materiality. The final element of most perjury statutes is the requirement that the false statement be "material" to the proceeding in which it is made. To be material, a statement must have the tendency or capacity to influence the court or other body before which the statement is made. Materiality is a broad concept, and a statement will be considered material not only if it directly relates to the matters at issue in the proceeding, but also if it could lead to the discovery of other relevant evidence or if it could enhance (or detract from) the credibility of a witness.

Materiality was traditionally considered to be an issue of law to be decided by the judge presiding over a perjury prosecution. In 1995, however, in addressing the related crime of making an unsworn false statement, the Supreme Court ruled that the materiality of a false statement was an issue for the jury. Shortly thereafter, the Supreme Court applied the same reasoning to the materiality element in perjury prosecutions. Thus, as with the other elements of the crime, the materiality element in a perjury case must be proven by the prosecution to the jury beyond a reasonable doubt.

Perjury prosecutions

Perjurious testimony or declarations can be given in a wide variety of contexts. Perjury prosecutions, however, most often result from false testimony given in a criminal trial or before a grand jury. Less frequently, a perjury prosecution will be based on false testimony given in a civil trial. In rare cases, false testimony in a civil deposition can lead to a perjury prosecution. Under federal law and in most states, perjury is a felony.

In many cases, perjury charges are brought when a prosecution for other criminal conduct is not possible—for example, when the defendant has already been acquitted of the other criminal conduct, or the statute of limitations on that conduct has expired, or there simply is not enough evidence of the other criminal conduct. The perjury conviction of Alger Hiss in 1950 is perhaps the most famous modern example of such a prosecution. Although Hiss was never charged with spying, he was prosecuted for perjury for lying to the federal grand jury that was investigating the spying allegations.

Related offenses

Subornation. Willfully procuring another person to commit perjury was traditionally considered to be a separate offense called subornation of perjury. This separate offense is largely superfluous, however, because one who causes or induces another to commit a crime is punishable under general principles of accomplice liability or solicitation. Although some states and the federal government still recognize subornation as a separate offense, the Model Penal Code recommends that the separate offense be eliminated.

False statement. Federal law (18 U.S.C. § 1001) makes it a crime to make a false statement to the government. The elements of this offense are substantially similar to the elements of perjury. The statement must be false, it must be made "knowingly and willfully," and it must be material. Unlike with perjury, the statement need not be made under oath; however, it must be made in a matter within the jurisdiction of the executive, legislative, or judicial branches of the federal government. The jurisdictional element is construed broadly and includes not only false statements made directly to the government (for example, statements to an F.B.I. agent about an ongoing investigation), but also false statements made indirectly to the government (for example, statements to a defense contractor that will be relied upon by the government).

A few states have enacted general laws against making false statements to public officials or agencies, but most of those laws are limited to written statements, and some require that the statement be made after written notice that a false statement is punishable as a crime.

Michael A. Simons

See also Counsel: Role of Counsel; Jury: Legal Aspects; Obstruction of Justice.

BIBLIOGRAPHY

American Law Institute. Model Penal Code and Commentaries: Official Draft and Revised Comments, part 2, article 241. Philadelphia: ALI, 1980.

Blackstone, William. Commentaries on the Laws of England, vol. 4. Oxford, U.K.: Clarendon Press, 1769. Reprint, New York: Oceana,1966.

Fitzpatrick, Bridget, and Torraco, John. "False Statements." American Criminal Law Review 36 (Summer 1999): 607–627.

Gordon, Michael D. "The Invention of a Common Law Crime: Perjury and the Elizabethan Courts." The American Journal of Legal History 24 (1980): 145–170.

Holdsworth, William. A History of English Law, vol. 4. 3d ed. London: Methuen, 1977.

Kislak, Rebecca, and Donoghue, John J. "Perjury." American Criminal Law Review 36 (1999): 957–982.

Nesland, James, and Godward, Cooley. "Perjury and False Declarations." In Otto G. Obermaier and Robert G. Morvillo, eds., White Collar Crime: Business and Regulatory Offenses. New York: Law Journal Seminars-Press, 1990. Pages 10–1 to 10–81.

Perkins, Rollin M., and Boyce, Ronald N. Criminal Law, 3d ed. Mineola, N.Y.: Foundation Press, 1982.

Perjury

A crime that occurs when an individual willfully makes a false statement during a judicial proceeding, after he or she has taken an oath to speak the truth.

Cheney's Chief of Staff Indicted

A two-year long investigation into allegations that a top government official had leaked the identity of a operative of the Central Intelligence Agency led to the indictment in November 2005 of I. Lewis "Scooter" Libby, chief of staff to Vice President Dick Cheney. Libby has been charged on five counts, including obstruction of justice, false statements, and perjury.

At his State of the Union address in 2003, President George W. Bush attempted to garner support for an invasion of Iraq. During his speech, he made the following statement: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." These sixteen words became the subject of extensive debate after reporters learned that the statement contradicted the findings of former ambassador Joseph C. Wilson, who had visited Niger in February 2002.

In May 2003, New York Times columnist Nicholas Kristof wrote an article questioning the so-called "sixteen words" in Bush's speech. Throughout much of the summer of 2003, journalists focused considerable attention on the alleged source of the information in the speech, which turned out to be Wilson. On July 6, Wilson wrote an op-ed piece entitled "What I Didn't Find in Africa," in which he said that "some of the intelligence related to Iraq's nuclear weapons program was twisted to exaggerate the Iraqi threat."

During July of 2003, journalists covering this story continued to focus their attention on Wilson. By that time, some reporters knew that Wilson's wife, Valerie Plame, was a CIA operative and that she was involved in sending her husband on the trip to Africa. On July 14, syndicated columnist Robert Novak revealed Plame's identity as an intelligence agent, attributing the information to two "senior administration officials." Three days later, three reporters for Time wrote that government officials had disclosed Plame's identity to them.

Some members of the press suspected that the source of the leak was presidential advisor Karl Rove. In September 2003, the Justice Department called for a full investigation into the source of the leak. U.S. Attorney Patrick J. Fitzgerald ran the investigation after former attorney general John Ashcroft recused himself. Agents of the Federal Bureau of Investigation interview several officials of the Bush administration, including Rove, press secretary Scott McClellan, and former White House Counsel (and current attorney general) Alberto R. Gonzales. Some of these individuals, along with other officials, were called to testify about the case before a grand jury convened for the U.S. District Court for the District of Columbia.

In August 2004, journalists Judith Miller of the New York Times and Matthew Cooper of Time both refused to reveal the sources of their information. Cooper was one of the Time reporters who said that officials had told him of Plame's identity. Miller, on the other hand, had not written a story about the leak. For refusing to testify, both Cooper and Miller were held in contempt of court. The reporters, along with their employers, challenged the contempt charges, but the U.S. Supreme Court in June 2005 refused to hear their appeals.

Cooper and Time on July 6 agreed to cooperate with the government's investigation. On July 10, Newsweek reported that Cooper's source was Rove. According to Rove's attorney, Rove had appeared before the grand jury but was not a target of the investigation. Cooper later said that Rove never referred to Plame by name, but Rove did inform the reporter that Wilson's wife was a CIA agent who was involved with issues related to weapons of mass destruction.

Miller was jailed on July 6 for refusing to reveal her own sources. Nearly three months later, she was released from a detention center in Virginia after agreeing to testify. The editors of the New York Times said that her source offered her assurances that he wanted her to testify. On September 30, the Times reported that Miller's source was Libby.

Libby was obligated under 18 U.S.C. § 793 (2000) and by executive orders issued by presidents Bush and Bill Clinton not to disclose classified information to unauthorized persons. He was also required to exercise the proper care in safeguarding classified information against authorized disclosure. Moreover, in his testimony before the grand jury in March 2004, Libby stated that he learned of Plame's identity from journalists.

Miller wrote an article for the New York Times on October 16, stating that she and Libby had discussed Plame's CIA position, though Libby did not mention Plame by name. On October 25, the Times reported that according to Libby's notes, he became aware of Plame's identity through a conversation with Cheney weeks before her identity became public. This revelation contradicted his testimony that he had learned of her identity through journalists.

Libby was indicted on October 28 and charged with one count of obstruction of justice, two counts of making false statements, and two counts of perjury. He resigned his position as Cheney's chief of staff and pleaded not guilty to the charges on November 3. Fitzgerald said that Libby had intentionally deceived authorities. "Mr. Libby's story that he was at the tail end of a chain of phone calls, passing on from one reporter what he heard from another, was not true," Fitzgerald said. "He was at the beginning of the chain of the phone calls, the first official to disclose this information outside the government to a reporter. And he lied about it afterwards, under oath and repeatedly."

On November 15, 2005, Bob Woodward of the Washington Post testified that a "senior administration official" had told him about Plame nearly a month before Novak had referred to her in his column. Although Woodward did not disclose the source of the information, he said that it was not Libby. As of May 2006, no other official had been charged with a crime for the leak.

Perjury

A crime that occurs when an individual willfully makes a false statement during a judicial proceeding, after he or she has taken an oath to speak the truth.

Libby Convicted for Lying About His Role in CIA Leak

A federal jury in March 2007 convicted I. Lewis "Scooter" Libby, the former chief of staff of Vice President Dick Cheney, on four criminal charges related to his role in the leak of the identify of an undercover agent of the Central Intelligence Agency. Jurors said after the trial that Libby's defense that he had could not remember facts related to the case was weak. However, members of the jury also indicated that they believed Libby to be the fall guy, taking the blame for other members of the administration of President George W. Bush.

The case stemmed from a statement made during Bush's State of the Union address in 2003, where he indicated that former Iraqi dictator Saddam Hussein had bought significant quantities of uranium from Africa. Reporters learned that this information contradicted reports from former ambassador Joseph C. Wilson, who visited Niger in 2002. Wilson later wrote an op-ed piece for the New York Times in which he said that Bush had exaggerated the threat of Iraq's nuclear weapons program.

Journalists learned shortly thereafter that Wilson's wife, Valerie Plame, was an operative of the CIA and had been involved with sending her husband to Niger. Robert Novak, a syndicated columnist, revealed Plame's identity in an article published on July 14. He attributed his information to two unidentified "senior administration officials." Shortly after Novak's piece was published, three reporters for Time also said that government officials had disclosed Plame's identity to them. In September 2003, the Justice Department authorized the Federal Bureau of Investigation to begin a criminal investigation into the leak of Plame's identify.

The investigation led to the convening of a grand jury for the U.S. District Court for the District of Columbia. The grand jury called several witnesses, including Bush, Cheney, Presidential Chief of Staff Andrew H. Card, National Security Advisor Stephen J. Hadley, Assistant to the President Dan Bartlett, former press secretary Art Fleischer, and advisor Karen Hughes. Libby testified under oath on two different occasions during March 2004.

The grand jury investigation became embroiled in more controversy when reporters for the New York Times and Time refused to cooperate. Over the next several months, the reporters and their employers fought subpoenas that the grand jury had issued, and two of the reporters were eventually found in contempt of court. Over the next year, New York Times reporter Judith Miller continued to refuse to divulge her sources, even after she was sent to jail for her refusal. Time reporter Matthew Cooper faced similar penalties for not cooperating with the grand jury.

Miller finally testified on September 30, 2005. About a month later, the grand jury indicted Libby on charges of obstruction of justice, making false statements, and perjury. Shortly after his indictment was announced, Bob Woodward, editor of the Washington Post, said the senior government official who had released Plame's identify was not Libby. By December 2005, special prosecutor Robert Fitzgerald began presenting evidence against Bush advisor Karl Rove before a new grand jury. Rove was never officially charged in the case.

Throughout much of 2006, Libby's attorneys tried to obtain notes and other information about the CIA leak from various journalists. Judge Reggie B. Walton ruled that Libby was not entitled to know the identity of the official who had revealed information about Plame to two journalists. Reports in March 2006 suggested that the source of the leak was former State Department official Richard L. Armitage. However, no other official was charged in the case.

Libby's trial began on January 16, 2007. Libby told investigators that he had forgotten that he had learned about Plame from Cheney in June 2003 that that he mistakenly believed that he learned of her from NBC's Tim Russert about a month later. Miller contradicted Libby's statements by testifying that she had learned of Plame's identity from Libby on June 23, 2003. However, six journalists testified on February 12 that Libby was not the source of information about Plame' identity and that they had learned about her from other sources within the administration.

Evidence at the trial suggested that Cheney was trying to disparage Wilson, who had been openly critical of the war with Iraq. Wilson clearly implied that the results of his findings would have been reported to Cheney, meaning that Cheney would have known that Bush's statement about the alleged uranium connection between Iraq and Niger were false. Defense attorneys had suggested that they were going to call both Libby and Cheney to the stand, but neither of the men testified at the trial.

On March 6, the jury convicted Libby on four of the five charges, including obstruction of justice, making a false statement to the FBI, and two counts of perjury. The jury acquitted Libby on a charge that he made a false statement related to a conversation that Libby allegedly had with Cooper in July 2003. Libby faces a possible prison term of 1 1/2 to three years under the Federal Sentencing Guidelines.

Cheney said in a written statement that he was "disappointed with the verdict." Jurors said that they did not believe Libby's defense that he could not remember the source who told him of Plame's identity. However, one juror said that the jury had a "tremendous amount of sympathy" for Libby and that the members of the jury questioned why other White House officials were not also charged. The juror also indicated that the jury believed that Cheney had told Libby to speak with reporters about Plame's identity.

PERJURY

Witnesses are guilty of perjury if it is proved, by the evidence of at least two other competent and consistent witnesses, that they had not been present at the time and at the place where they had testified to have been when the event in issue had happened (Mak. 1:4). Such false witnesses are known as edim zomemim (lit. conspiring witnesses). It is not sufficient that anything to which those witnesses had testified is contradicted by new witnesses, to the effect that what they had testified was untrue (as for "contradictions," see *Witness): such contradictions are only the starting point of the evidence required to convict those witnesses of perjury (Maim., Yad, Edut 18:4), namely, that they could not possibly have witnessed the facts to which they had testified (ibid. 18:2). Even though the evidence of the first set of witnesses had been accepted by the court as truthful, it is the evidence of the latter set of witnesses, testifying to the "alibi" of the first, that is to be accepted as conclusive (Mak. 5b; Yad, Edut 18:3) irrespective of the actual number of witnesses in each set. The latter set of witnesses must testify in the presence of the first set. Should this not be possible, e.g., if the first set are dead, this constitutes a "contra-diction" and both testimonies will be discarded (cf. Yad, Edut 18:5). Where no evidence of perjury in the technical sense was available, but the evidence had conclusively been contradicted (e.g., where the murdered man appeared in court alive), the court would inflict disciplinary lashes (Makkat Mardut – see *Flogging; Yad, Edut 18:6; Sha'arei Ẓedek 4:7, 24 and 45; Rosh, resp., 58:4; et al.).

The punishment for perjury is laid down in the Bible: "You shall do to him as he schemed to do his fellow… Nor must you show pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot" (Deut. 19:19–21). The Sadducees interpreted this law literally: the false witness would not forfeit his life, unless and until the man against whom he had testified had been executed; but the Pharisean interpretation, which is the source of the law as it was eventually established, was that the witness must be made to suffer what he had schemed to do, but not what he had actually caused to occur, to his fellow (Sif. Deut. 190; Mak. 1:6) – so that the biblical law was held to be applicable only where a man had been sentenced on the strength of false testimony, but before he was executed; the witnesses who had testified against him were then formally tried and convicted of perjury (Yad, Edut 20:2). This was a highly improbable contingency, as there was hardly an interval between sentence and execution (see *Practice and Procedure). The enunciation of this rule is followed in the Talmud by the objection that it could not be right to take the life of the witness when the life of the person he had schemed to kill had not in fact been taken; or, if the Bible really required that to be the law, then a fortiori must the life of the witness be taken after that person had been executed: if a man is liable to die because of having intended to kill, surely he must be liable to die if he had actually killed. The objection was dismissed in reliance on the rule (see *Penal Law) that no criminal offense can be created by analogy or logical deduction (Mak. 5b; and cf. Sanh. 74a and 76a; et al.).

Later commentators theorized that God's presence in the court (cf. Deut. 19:17) would sufficiently enlighten the minds of the judges to detect the falsehood of the testimony in time, before execution, for it is written, "do not bring death on the righteous and innocent, for I will not acquit the wrongdoer" (Ex. 23:7). It follows that the offense of perjury can have been committed only where the accused had not yet been executed, for a man who was executed must have been rightly convicted (Naḥmanides, commentary, Deut. 19:19).

The rule was, however, limited to capital cases only. Perjured witnesses were given the same non-capital punishments as had already been inflicted on those against whom they had testified (Yad, Edut 20:2), and where the defendant in a civil case had paid the judgment debt, the amount so paid was recovered from the witnesses (Tur, Ḥm 38:2). Where the sanction imposed on the strength of their testimony could not be imposed on them (e.g., where an alleged manslayer had been banished to a *city of refuge, or where a priest had been suspended from office), they would be flogged (Yad, Edut 20:8–9; Tur, Ḥm 38:3). To be convicted of perjury, no previous warning had to be given to false witnesses (Ket. 33a; Yad, Edut 18:4; Tur, Ḥm 38:9). No single witness could be convicted of perjury: the conviction had always to be in respect of both (or all) the witnesses who had testified falsely together (Mak. 1:7); and when once one false witness had alone been convicted, it was said that innocent blood had been shed (Mak. 5b). As perjured witnesses are disqualified from being admitted as a witness in future, all convictions of perjury must be given wide publicity (Sanh. 89a; Maim., Yad, Edut 18:7), to fulfill the biblical command that "all others will hear and be afraid" (Deut. 19:20).

bibliography:

D. Hoffmann, in mwj, 5 (1878), 1–14; O. Baehr, Das Gesetz ueber falsche Zeugen nach Bibel und Talmud (1882); J. Horovitz, in: Festschrift… David Hoffmann (1914), 139–61; idem, Untersuchungen zur rabbinischen Lehre von den falschen Zeugen (1914); J.S. Zuri, Mishpat ha-Talmud, 7 (1921), 46; Gulak, Yesodei, 4 (1922), 161–3; et, 8 (1957), 609–23; L. Finkelstein, The Pharisees, 1 (1962³), 142–4; 2 (1962³), 696–8; Z. Dor, in: Sefer ha-Shanah Bar-Ilan, 2 (1964), 107–24; P. Daykan, in: Sinai, 56 (1964/65), 295–302; S. Schmida, "Li-Ve'ayat Edei Sheker" (Diss., 1965). add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:331f.; idem, Jewish Law (1994), 1:397f.

[Haim Hermann Cohn]