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How James Clapper will get away with perjury

Did National Director of Intelligence James Clapper commit perjury when he testified before the Senate in March?  The answer to this question isn’t as straightforward as it appears to be.  As a practical matter, however, it’s the wrong question to be asking about Clapper’s behavior.

Clapper was asked by Sen. Ron Wyden, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded, “No sir … not wittingly.”

Now this is what an ordinary person would call a “lie.”  Ordinary people also believe that perjury is lying under oath.  But lawyers are not ordinary people, and, as a technical legal matter, the situation is more complicated.

If the question of whether Clapper committed perjury is understood to mean, “would the government (if it were inclined to prosecute Clapper, which it won’t) be able to prove beyond a reasonable doubt that Clapper’s response violated the federal perjury statutes?” the answer is, “maybe, maybe not.”

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