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President Bush Owes Martha Stewart a Pardon

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In my March 24 article, “I Don’t Remember,” I pointed out that President Bush and National Security Adviser Condoleezza Rice had to be lying when they said that they could not remember the September 12, 2001, meeting with former U.S. Counterterrorism Chief Richard A. Clarke. Recall that Clarke testified before the 9/11 investigative commission that Bush told Clarke at that meeting to search out a link between 9/11 and Saddam Hussein. The reason that Bush and Rice had to be lying, I contended, was that such a meeting and such a statement were much too important to have been forgotten. Either the meeting took place and the statement was made, or it did not and it was not. Bush’s and Rice’s “I don’t remember” had to be a lie.

Subsequent events seem to have confirmed the truth of my contention. According to the March 28 issue of the New York Times,

The White House acknowledged Sunday that on the day after the terrorist attacks of September 11, 2001, President Bush pressed his counterterrorism adviser, Richard A. Clarke, to find out whether Iraq was involved. Mr. Bush wanted to know “did Iraq have anything to do with this? Were they complicit in it?” Condoleezza Rice, the president’s national security adviser, recounted in an interview on CBS’ “60 Minutes.”

Mr. Bush was not trying to intimidate anyone to “produce information,” she said. Rather, given the United States’ “actively hostile relationship” with Iraq at the time, he was asking Mr. Clarke “a perfectly logical question.”

Question: How is it possible for two people — Bush and Rice — to recall the details of a meeting and an explanation as to why the president made an important statement at that meeting when just a few days ago both of them had no recollection of the meeting and the statement?

Answer: There is a likely explanation: Bush and Rice were lying when they claimed last week to have had no recollection about the matter.

The New York Times article puts the matter succinctly:

The conversation — which the White House suggested last week had never taken place — centers on perhaps the most volatile charge that Mr. Clarke has made public in recent days: that the Bush White House became fixated on Iraq and Saddam Hussein at the expense of focusing on Al Qaeda’s role in the terrorism…. Last week, the White House said it had no record that Mr. Bush had even been in the Situation Room that day and said the president had no recollection of such a conversation. Although administration officials stopped short of denying the account, they used it to cast doubt on Mr. Clarke’s credibility as they sought to debunk the charge that the administration downplayed the threat posed by Al Qaeda in the months before the Sept. 11 attacks and worried instead about Iraq.

What legal consequences will arise from the president’s and his national security advisor’s “I don’t remember” deception? The answer is “None,” at least not a Justice Department criminal prosecution for lying, as happened to Martha Stewart

But compare the magnitude and gravity of Martha Stewart’s alleged lies with those of the president and his advisor. The lies that Stewart allegedly told, including her “I don’t recall” statement relating to a telephone conversation with her stockbroker, were minor and immaterial and related to a criminal investigation into stock transactions that, contrary to public opinion, didn’t victimize anyone. (Keep in mind that the jury acquitted Stewart on the government’s main point — that Stewart supposedly lied when she claimed to have had a stop-loss order with her broker.)

The “I don’t remember” lies issued by Bush and Rice, on the other hand, related to the 9/11 attacks, which took the lives of almost 3,000 Americans, and to an official U.S. government investigation relating to the future security of the country.

“But Martha Stewart lied to federal bureaucrats, which is a federal crime, while Bush and Rice only lied to the whole country, which is not a federal crime.” Perhaps, but arguably Bush’s and Rice’s publicly issued false-memory statements were intended to influence the official 9/11 commission (where Clarke had given his testimony) into incorrectly concluding that Clarke was the one who was lying.

Moreover, the federal criminal statute against lying under which Stewart was convicted doesn’t expressly refer to lying directly to federal officials; it refers instead to simply lying about “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” Given that the Justice Department took great pride in aggressively coming up with the novel legal theory that Martha Stewart committed a federal felony by simply proclaiming her innocence to the public, would it really be a stretch for it to apply the statute against lying under which Stewart was convicted to Bush’s and Rice’s “I don’t remember” statements?

Will the Justice Department go after Bush and Rice for lying, the way they went after Martha Stewart? Will the Congress impeach the president for committing a high crime or misdemeanor for lying about an event relating to national security? Of course not, and the reason there will be no criminal prosecution or impeachment is not that Bush and Rice didn’t lie with their “I don’t recall” statements, but rather that lying by federal officials, when such lying is not under oath, is not considered a sufficiently important offense to warrant criminal prosecution or impeachment.

Thus, while laws against perjury — a crime entailing false statements made under oath — are critically important and need to be enforced, laws against lying (when people are not under oath) are ludicrous and undeserving of enforcement. That’s why Bush should not be impeached and why neither Bush nor Rice should be indicted for their “I don’t remember” deception. It’s also why Bush owes Martha Stewart a pardon.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.