James Clapper and the Issue of Selective Prosecution

As I pointed out in a recent post, James Clapper, the National Director of Intelligence, is pretty clearly guilty of perjury for lying under oath in Senate testimony. As I implied in that post, the chance that he will be charged with perjury, let alone convicted, is very close to zero. Perjury is a crime, crimes in our legal system are prosecuted by the state, so crimes committed by state agents on behalf of their employers are unlikely to be prosecuted.

The implication of that post was that this is a bad thing, but it isn't entirely clear. To begin with, in a world of limited resources and very broad criminal law, the government cannot, in practice, prosecute every crime it has reason to believe exists. Obama, at various points in the past, strongly implied that people selling marijuana in ways consistent with state medical marijuana laws would not be targeted by federal law enforcement, although their activity was in violation of federal law. While I would prefer that the federal law be abolished, that struck me at the time as at least a small step in the right direction, and I wish he had kept that particular commitment.

In Clapper's case the arguments would be somewhat different—the federal government has, after all, devoted substantial resources in the past to prosecuting similar acts of perjury by prominent private individuals. But it seems likely that Clapper believed, not unreasonably, that committing that particular crime was part of his job, justified by the need to keep secret what he regarded as an important set of intelligence operations. Refusing to answer the question would have made it reasonably obvious what the answer was. It is possible that he could have evaded the question in some less obvious way, having been notified in advance that it was coming, but perhaps he saw no way of doing so. Do we want to jail loyal Americans for serving their country to the best of their ability—when doing so requires them to break the law? 

As it happens, I raised a closely related question in my second novel. The context is a conversation between Prince Kieron, brother and heir of the king and royal official in charge of dealing with magery, and Ellen, my female protagonist, who has caught one of Kieron's agents engaged in an illegal use of magic and can prove it. 

The Prince remained silent for a moment, thoughtful.

"I remember the lecture and I concede the justice of your point. The King is not above the law. Nonetheless, I will not promise never to violate bounds or law myself, nor will I promise to instruct my servants never to do so. Law-breaking is a bad thing, whether by the King's servants or anyone else, but there are worse things, some of which it is my responsibility to deal with. I will promise not to violate bounds or law save in the most extreme circumstances, and to do my best to see that my servants will not, so that incidents such as the two you have described do not occur again. If my people are charged, as Fieras was, I will do my best to see that they get an honest trial.

I am sorry, but that is the most I can offer ...