Darryl Levinson (continued): The decadence of the US Congress

Douglas Laycock DLaycock at law.utexas.edu
Mon Feb 6 19:33:43 PST 2006


I think perjury carries more serious penalties than false statements, so in that sense the oath matters.  More fundamentally, the false statement statute is needed for statements in the field.  When the FBI agent asks you about the character of one of your students who has applied for a federal job, or about the alleged crime you may have witnessed if your life is more interesting than mine, you are not under oath.  There is no judicial officer on the scene to administer the oath, and we have not deputized FBI agents to administer oaths.  But a false statement is still a crime.
 
It is basically a side benefit that the false statement act also applies to Gonzales when he gives unsworn testimony in a setting where an oath would be perfectly workable and traditional.
 
I have testified to many Congressional committees, more on law than on facts, and impressionistically, I think I have been unsworn more often than sworn.  It seemed to depend on the whim of the chairman.  But of course my testimony was never visible enough for either party to be scoring political points with it.
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
Sent: Mon 2/6/2006 9:01 PM
To: Scarberry, Mark; conlawprof at lists.ucla.edu
Subject: RE: Darryl Levinson (continued): The decadence of the US Congress


Both Marks make very interesting points (not surprisingly).  As to Mark T., I note that Specter emphasized that Gonzales had taken the oath before and was quite willing to take the oath this time also, but, for reasons not entirely clear to me, he (Specter) thought it would be unnecessary to put him under oath today.  It strikes me as telling, though, that even an issue like this breaks down on straight party-line vote.  The "decadence" may not so much be the failure to require the oath as precisely the complete politicization of what, I now gather, is an almost completely symbolic point.  Why did Specter care so much, if Gonzales in fact was willing?
 
I'm sure that Mark S. is correct, though that raises interesting questions about why we bother putting people under the oath at all.  In any event, as always, I learn important things from people on this list.
 
sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Scarberry, Mark
Sent: Mon 2/6/2006 7:31 PM
To: conlawprof at lists.ucla.edu
Subject: RE:Darryl Levinson (continued): The decadence of the US Congress



And, if I'm not mistaken, it is a felony to knowingly and willfully give
materially false testimony before a congressional committee, without regard
to whether an oath is taken. (Of course, it wouldn't be perjury, but I
believe it would be a violation of 18 USC section 1001, which could result
in a five year prison term.)

Mark S. Scarberry
Pepperdine University School of Law


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Tushnet
Sent: Monday, February 06, 2006 5:11 PM
To: Sanford Levinson
Cc: conlawprof at lists.ucla.edu
Subject: Re: RE:Darryl Levinson (continued): The decadence of the US
Congress

I'm basically with Sandy on the general story he's been telling, but I don't
see that this incident has much to do with "cravenness." 
One might say that, in the past, Senators (of both parties) trusted Cabinet
members to tell the truth, and therefore didn't insist on an oath, and that
the Republicans were following tradition, while the Democrats were trying to
score political points.  And, particularly because this is the AG, and with
the expiration of the independent counsel statute, the possibility of a
perjury prosecution is so small that there's no point in going through the
charade of the oath.  If it turns out that someone can pin a lie on the AG,
there'll be no less damage than if he had sworn an oath.
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>From the NYTimes story on Gonzales's testimony:

When Mr. Feingold pushed to have Mr. Gonzales sworn in, Mr. Specter called
for a vote. The committee voted, 10 to 8, along party lines not to have Mr.
Gonzales sworn in.

=20

What more need be said about the cravenness of the US Congress--and the
priority of party loyalty?  (Were the Republicans (properly) afraid that
Gonzales might commit perjury?)   Recall, incidentally, that Bush wasn't
required to testify under oath before the 9/11 Commission.  Is this just
another sign of monarchical prerogative in our new constitutional system?=20

sandy =20


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<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">
<HTML><HEAD><TITLE>Conlawprof Digest, Vol 28, Issue 5</TITLE> <META
http-equiv=3DContent-Type content=3D"text/html; = charset=3Dus-ascii"> <META
content=3D"MSHTML 6.00.2800.1515" name=3DGENERATOR></HEAD> <BODY> <DIV
dir=3Dltr align=3Dleft> <P><SPAN class=3D160520101-07022006><FONT
face=3DArial color=3D#0000ff = size=3D2>From the=20 NYTimes story on
Gonzales's testimony:</FONT></SPAN></P> <P><FONT face=3DArial
color=3D#0000ff size=3D2>When Mr. Feingold pushed = to have Mr.=20 Gonzales
sworn in, Mr. Specter called for a vote. The committee voted, = 10 to 8,=20
along party lines not to have Mr. Gonzales sworn in.</FONT></P> <P><FONT
face=3DArial color=3D#0000ff size=3D2></FONT>&nbsp;</P> <P><SPAN
class=3D160520101-07022006><FONT face=3DArial color=3D#0000ff =
size=3D2>What=20 more need be said about the cravenness of the US
Congress--and the = priority of=20 party loyalty?&nbsp; (Were the
Republicans (properly) afraid that = Gonzales might=20 commit
perjury?)&nbsp;&nbsp; Recall, incidentally, that Bush wasn't = required
to=20 testify under oath before the 9/11 Commission.&nbsp; Is this just =
another sign=20 of monarchical prerogative in our new constitutional=20
system?&nbsp;</FONT></SPAN></P> <P><SPAN class=3D160520101-07022006><FONT
face=3DArial color=3D#0000ff=20 size=3D2>sandy&nbsp;
</FONT></SPAN></P></DIV></BODY></HTML>

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