By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli
“I am a liar, and that’s the truth” said the inhabitant of Crete. Was the Cretan’s assertion a lie or was he telling the truth? ~ Epimenides’ Paradox
She spouts this drivel in response to a specific question concerning her position that the Director of the F.B.I., James Comey, said Clinton's responses to F.B.I. questions, posed to her during her interview, were truthful:
“I was pointing out in both of those instances, that Director Comey had said that my answers in my FBI interview were truthful. That really is the bottom line here,” she said. “What I told the FBI, which he said was truthful, is consistent with what I have said publicly. I may have short-circuited and for that I will try to clarify.” Hillary Rodham’s statement in response to a journalist a gathering of black and Hispanic journalists in Washington, D.C., Clinton, on August 6, as reported by CNN.
There’s no “bottom line” here—just a bottomless pit, a black hole: a deep, dark abyss constructed on lie upon lie, upon lie, upon lie. Hillary Clinton asserts Director Comey said her answers “were truthful.” That declaration is itself a lie.
For that declaration contradicts Director Comey’s testimony before the Full House Committee on Oversight and Government Reform held on July 7, 2016, in Washington, D.C. The Hearing took place two days after the FBI Director delivered an unprecedented statement to the American people, laying out, in clear, cogent, damning detail the nature of and extent of Clinton’s crimes.
Congressman Trey Gowdy, Republican, South Carolina, pointedly asked Director Comey whether Hillary Clinton lied to the FBI during the FBI’s interview of Clinton. He said she did. (video and transcript to follow)
A portion of that exchange is here:
“GOWDY: Good morning, Director Comey. Secretary Clinton said she never sent or received classified information over her private e-mail. Was that true?
COMEY: Our investigation found that there was classified information sent —
GOWDY: So it was not true? COMEY: That’s what I said.
GOWDY: OK. Well, I’m looking for a little shorter answer so you and I are not here quite as long. Secretary Clinton said there was not marked classified on her e-mails either sent or received, was that true?
COMEY: That’s not true. There were a small number of portion markings on I think three of the documents.
GOWDY: Secretary Clinton said ‘I did not e-mail any classified material to anyone on my e-mail, there is no classified material.’ Was that true?
COMEY: There was classified material e-mail.
GOWDY: Secretary Clinton said she used just one device. Was that true?
COMEY: She used multiple devices during the four years of her term as secretary of State.
GOWDY: Secretary Clinton said all work-related e-mails were returned to the State Department. Was that true?
COMEY: No. We found work-related e-mails, thousands that were not returned.”
For a transcript of the entire eight and one-half hour hearing, go to: https://oversight.house.gov/
Interview vs Deposition
News groups make much of Hillary Clinton’s use of the expression, “short-circuited,” in her response to a journalist at the August 6, 2016 gathering of black and Hispanic journalists. The news groups were right to do so, for the expression means nothing. Clinton’s handlers came up with it as a useful and deceitful dodge.
At the news conference, Hillary Clinton says “she will try to clarify.” Yet she clarified nothing. She never does. She never will. She leaves her listeners ever more puzzled, confused. She lies and obfuscates and keeps diligently to her script, meticulously prepared for her by her speech writers. She tries to sound contrite. She can’t because contrition isn’t in her character.
Americans should place more stock in another term Clinton employed at the August 6, 2016 gathering of black and Hispanic journalists. It is a neutral, matter-of-fact word, but one requiring a close look. For it says much of the insidious design to protect Clinton from exposure to legal action. The term is ‘interview.’
Now, Clinton did truthfully refer to her meeting with FBI agents as an ‘interview.’ The FBI conducted an interview of Clinton, not a deposition. What’s the difference? The term, ‘deposition,’ is a legal term of art. The term, ‘interview,’ though, has many shades of meaning, colloquial as well as legal.
Black’s Law Dictionary, Ninth Edition, defines ‘deposition’ as ‘a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for later use in court or for discovery purposes.’ Black’s Law Dictionary, Ninth Edition, defines ‘testimony,’ as ‘Evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.’
The word, ‘interview,’ is not defined in Black’s Law Dictionary except in reference to a U.S. Patent and Trademark Office form which has no application here. But the distinction between an interview and a deposition has particular import apropos of the Clinton matter.
The FBI didn’t record Clinton’s responses to the FBI agents’ questions, and Clinton didn’t formally swear, under oath, that her responses were truthful. This means the FBI didn’t formally depose Hillary Clinton. So her assertions cannot be used at trial.
Why didn’t the FBI formally depose Clinton? Certainly, the enormity of the allegations against her would seem to demand that. Why did Hillary Clinton create a personal email server system? Didn’t she appreciate the risks in doing so? Couldn’t she appreciate the risks? What does her creation of a personal email system, leading to the mishandling of secret Government information, say about her judgment as a high level Government official?
Again, we ask: why didn’t FBI agents formally depose or, at least, electronically record Hillary Clinton’s responses to their questions?
Curiously, there is precedent for refraining from recording an interview. Both State and federal law enforcement officers had traditionally opposed recording of interviews of criminal suspects. Of course, if interviews aren’t recorded, in some manner, and if the interviewee's declarations are not under oath or affirmation, they have little if any evidentiary use in Court proceedings. But, perhaps, then, that’s the point of dispensing with the recording of interviews. Perhaps, then, that’s the point of dispensing with formal depositions. Let’s look at the history behind this approach to dispense with formal depositions in these matters.
To Record or Not to Record
Prior to 2003, only two States required their law enforcement officers to electronically record interviews and, until recently, federal Departments, including the Department of Justice resisted recording interviews.
However, “[s]ince 2003, the number of states requiring law enforcement officers to electronically record some or all interviews conducted with suspects in their custody has grown from two to at least twenty-two. Until recently, the U.S. Department of Justice (DOJ) has resisted this trend; under its previous policy, the DOJ's three chief investigative agencies — the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) — rarely recorded custodial interviews. However, on May 22, 2014, the DOJ announced a substantial change in its policy, creating a presumption that FBI, DEA, ATF, and United States Marshals Service (USMS) agents will electronically record custodial interviews.” Recent Administrative Policy: Criminal Procedure — Custodial Interviews — Department Of Justice Institutes Presumption That Agents Will Electronically Record Custodial Interviews, Dep't Of Justice, New Department Policy Concerning Electronic Recording Of Statements (2014)., 128 Harv. L. Rev. 1552 (March 10, 2015).
The Department of Justice’s new policy, adopted in 2014, concerning recording custodial interviews changed. At the time of adoption of the new policy, Eric Holder was the Attorney General, appointed by President Barack Obama.
Actually, the new policy was a welcome change.
For, [t]he DOJ's new policy, which went into effect on July 11, 2014, flips its previous presumption against recording to one in favor of it. Agents no longer need to obtain supervisory approval to record interviews: FBI, DEA, ATF, and USMS agents are now expected to electronically record statements of individuals suspected of any federal crime in their custody when in a ‘place of detention with suitable recording equipment.’” Id.
Why did the DOJ change its stance concerning recording custodial interviews?
“Before the recent shift, the DOJ's position was that custodial interviews generally should not be recorded. The major federal law enforcement agencies strongly resisted recording interrogations, citing fears that recording would interfere with rapport building, lay juries and judges would misinterpret acceptable interviewing techniques as improper, and the implementation would be logistically difficult. These concerns led agencies to erect barriers to electronic recording and to rely instead on note-taking and agent memory. For example, the FBI's standard procedure was for an agent to take notes during the interview and later compile a summary known as a Form 302. The Agency had an exception to this practice that allowed recording if the Special Agent in Charge (SAC) ‘deem[ed] it advisable.’ In all but the three largest FBI field offices, there is one SAC who runs the entire office. Therefore, although the FBI claimed that its policy allowed ‘flexibility’ in deciding when to record interviews, internal DOJ analysis suggests that the policy actually inhibited agents' ability to exercise discretion regarding whether or not to record their own interviews, and created a ‘heavy presumption’ against recording. Recent developments, however, expose the shortcomings of the DOJ's previous policy. After decades of experience on the state level with recording policies, many of the FBI's concerns about recording interviews have been proven false. . . . And even where the concerns may prove well-founded, exceptions to recording requirements can easily address the problem; for instance, an exception could be granted for technological difficulties.” Id.
Note: the policy for recording of interviews refers to those individuals in custody. But, the FBI never held Clinton in federal custody. So the DOJ’s new policy, favoring recording interviews, doesn’t directly apply here. Still, one might ask why—given the severity of Clinton’s conduct and the damage she inflicted on the security of this Nation and its people—the FBI didn’t take Clinton into custody?
Regardless, nothing suggests the FBI SAC Officer couldn’t electronically record Clinton’s responses even if the FBI had not detained her. Still, “. . . the agent and prosecutor may decide not to record an interview conducted for the purpose of gathering information related to public safety or national security.” Id. It’s the SAC Officer’s call. But, given the seriousness of Clinton’s mishandling of the nation’s secrets—a felony—one would think sufficient reason existed for electronic recording of Clinton’s responses; and one can, therefore, certainly make the rational counter argument that it is precisely because Clinton’s transgressions rose to the level of national security concerns that the FBI SAC Officer should have recorded Clinton’s responses to the FBI agents’ questioning for eventual use as evidence against Clinton in a court proceeding if the DOJ ultimately brought charges against her.
Certainly, Congress would wish to review the transcript. Indeed, at the August 6, 2015 hearing, Congress pointed out its desire to obtain the SAC Officer’s Form 302 summary of the FBI’s interview of Hillary Clinton. Whether the FBI ultimately does so, that is an open question.
Indeed, that is a transcendental question relating to Government’s attempt to hide nefarious, probably illegal actions from the American people.
But, formal electronic transcript or no, one incontrovertible fact remains, Hillary Clinton lied to the FBI. Lying to the FBI is a federal crime—a serious federal crime under 18 U.S.C. § 1001.
18 U.S.C. § 1001, sets forth:
“Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism . . . imprisoned not more than 8 years . . . or both.”
Of note, a person need not have perjured him or herself—that is to say, a person need not have testified falsely, under oath—to have violated 18 U.S.C. § 1001.When a person lies to a federal official—whether under oath or not—that person has violated federal law. Director Comey has acknowledged as much.
Hillary Clinton cannot claim an excuse to lie or a license to lie to the FBI simply because she did not formally swear to tell the truth. And, her claim to have told the truth, when facts prove otherwise, do not elevate her lies to truth simply because they were uttered out of the mouth of one, in her view at least, of esteemed status, beyond the rule of law that applies to us lesser mortal citizens of the United States.
Courts of law, in time past, have taken a very dim view of liars, whether their lies were produced under oath or not. The courts have denied citizenship to individuals who lied to naturalization officials. See, Petition of Ledo, 67 F. Supp. 917 (D.C. RI 1946). The Court denied citizenship to a liar, noting that, under the naturalization Statute, only a person of good moral character, who accepts the principles of our Constitution and is not predisposed to harm our Country is welcome to become a citizen. The Court held that a liar is not a person of good moral character. That is ground to deny a person his or he petition for citizenship.
8 U.S.C.A. § 707(a) provides:
‘No person, except as hereinafter provided in this chapter, shall be naturalized unless such petitioner, (1) immediately preceding the date of filing petition for naturalization has resided continuously within the United States for at least five years and within the State in which the petitioner resided at the time of filing the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.’
8 U.S.C.A. § 707(a) is now covered by 8 USCS § 1427(a) through (c). Of note, the language, especially, pertaining to moral character remains, in the present statute, exactly as written in the older Statute.
See, In re Spenser, 22 F. Cas. 921, 5 Sawy 195 (1895). The Circuit Court of Oregon pointed out that perjury is not only malum prohibitum [an act that is a crime merely because prohibited by statute] but malum in se [an act that is inherently immoral, like arson or murder] that wherever it affected the administration of justice, by introducing falsehood and fraud therein, it was at common law deemed infamous, and the person committing it held incompetent as a witness and unworthy of credit.
How far we have come. A court of law may forbid citizenship to a person who lies to a federal officer on the ground our Country does not deem such a person worthy of our Country’s grace, for that person is, both by law and by nature, an immoral person.
Yet, this Country now raises the specter of nominating, to the highest Office in the Land, an incorrigible liar—a person who lied to FBI. She then unabashedly compounds the lies told to the FBI by telling the American people she never lied to the FBI.
We have in Hillary Rodham Clinton a person capable of turning veritable lies into inviolate truths and, when pressed, will claim she simply made a “mistake.” Those“mistakes” translate into devastation and horror. Those “mistakes” have weakened this Country and its system of laws, led directly or indirectly to the deaths of thousands of Americans, allowed for the rise and strengthening of numerous radical Islamic groups, created political instability throughout the world, promoted civil unrest, but created hundreds of millions of dollars for the Clintons as they have placed, and will undoubtedly continue to place, our Country’s assets, its traditions, its values, its very Constitution and Sovereignty—all of it—on the auction block. Nothing is sacred or “off the table” for Bill and Hillary Clinton where their insatiable greed, lust for power, and capacity for unremorseful criminal misconduct are concerned. See the documentary, “Clinton Cash.”
Under present and past naturalization Statutes and under U.S. Court law decisions—decisions going back to the 19th Century—Hillary Rodham Clinton would have been denied citizenship given her penchant for lying to federal officials. Such a person is beyond redemption. No one ought to be surprised, then, at Hillary Clinton’s audacity, as a citizen of the United States, to claim the Office of U.S. Presidency for herself, as her God-given right—and as the God-given right of her offspring in years to come.
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