Regarding the Definition of
Perjury, by present federal Statute

Chart of the Elements of Perjury
United States Criminal Code
18 U.S.C. §1621

Chart of the Elements of Perjury
as defined in English common Law,
Blackstone's Commentaries on the Laws of England

Rules 401 and 402
of the Federal Rules of Evidence

Rule 401. Definition of "Relevant Evidence"

Rule 402. Relevant Evidence Generally Admissible;
Irrelevant Evidence Inadmissible.

Material Matter

Judge Wright's December 11, 1997 Order
giving her materiality Standard for
discoverable Information.

Trifling collateral Circumstance v. Material Matter.

And the lawful Oath

Perjury by § 1623 of Title 18
of the United States Code.

Perjury by 18 U.S.C. § 1623

"False declarations" before grand jury or court
(18 U.S.C. § 1623)

The Criminal Offence of "Obstruction of Justice,"
as prescribed by present United States Statute,
is, like the present Statute Law on perjury,
defective and improper.

Tampering with a witness, victim, or an informant
(18 U.S.C. § 15121)

Regarding the Definition of
Perjury, by present federal Statute

The present federal statute defining the crime of perjury is given in § 1621 of Title 18 of the United States Code:

"§ 1621. Perjury generally. Whoever (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribes, is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, wilfully subscribes as true any material matter which he does not believe to be true, is guilty of perjury and shall, except as otherwise expressly provided by law, defined under this title or imprisoned not more than five years, or both. ..."

I say present perjury law, because this law was not always the federal perjury law. In 1790, the year right after the year the Constitution went into effect, the Congress enacted the first criminal code of the United States, making "wilful corrupt perjury" in any proceeding in the United States Courts a federal crime. That 1790 perjury law is wholly different than the present law. In order to show most clearly the impropriety of the present statute on perjury, the two laws need to be compared. The 1790 perjury law is re-printed as follows:

"That if any person shall wilfully and corruptly commit perjury, or shall by any means procure any person to commit corrupt and wilful perjury, on his or her oath or affirmation in any suit, controversy, matter or cause depending in any of the courts of the United States, or in any deposition taken pursuant to the laws of the United States, every person so offending, and being thereof convicted, shall be imprisoned not exceeding three years, ..."

(This law is contained in Section 18 of An Act for the Punishment of certain Crimes against the United States, April 30, 1790.) The 1790 law does not define specifically "wilful and corrupt perjury;" but the expression was certainly taken from Blackstone's Commentaries on the Laws of England, Book IV, on Public Wrongs, Chapter 10, "Offenses against Public Justice." The 16th offense of Blackstone's enumeration of these species of offenses is that of perjury. Wrote Blackstone,

"The next offence against public justice is when the suit is past it's commencement, and come to trial. And that is the crime of wilful and corrupt perjury; which is defined by sir Edward Coke, to be a crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears wilfully, absolutely and falsely, in a matter material to the issue or point in question. The law takes no notice of any perjury but such as is committed in some court of justice, having power to administer an oath; or before some magistrate or proper officer, invested with a similar authority, in some proceedings relative to a civil suit or a criminal prosecution: for it esteems all other oaths unnecessary at least, and therefore will not punish the breach of them.

For which reason it is much to be questioned how far any magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occasion: since it is more than possible, that by such idle oaths a man may frequently in foro conscientiae incur the guilt, and at the same time evade the temporal penalties, of perjury.

The perjury must also be wilful, positive, and absolute; not upon surprise, or the like: it also must be in some point material to the question in dispute; for if it only be in some trifling collateral circumstances, to which no regard is paid, it is no more penal than in the voluntary extrajudicial oaths before-mentioned.

Subornation of perjury is the offence of procuring another to take such a false oath, as constitutes perjury in the principal. ..."

In order to understand fully the definition of criminal perjury given by Blackstone, one must consider the definition in conjunction with the lawful oath that is to be administered in a judicial proceeding, and the definition of "the issue." As will be discussed below, the lawful oath which is to be administered to a witness in any suit (and also to parties in suits in equity; see Part VII), is that he shall depose the whole truth; and the issue is the fact alleged or affirmed on the one side and denied on the other.

Upon a cursory comparison of the present federal law on perjury with the English common law definition of criminal perjury as laid down by Blackstone (wilful and corrupt perjury), it is found that the two laws are very substantially different. On the one hand, the present law is not tempered by a requirement that the perjury must be corrupt in order to be criminal. But on the other hand the present law provides that the perjury is not criminal if the person who testifies or deposes "believed" that his wilful statement that is contrary to the oath he took is true. Therefore, would not that person have to confess that he did not believe he was telling the truth, before he could be prosecuted and convicted of perjury under the present law? This subjective criterion in the law about the person's belief is plainly absurd.

The present law is also confusing due to its internal contradiction, explained as follows: To find that a person "wilfully" stated some "material matter" contrary to his oath to tell the truth, but that the person "believed" that his sworn statement is true, would be plainly contradictory. If he wilfully stated contrary to his oath to tell the truth, then he, by definition of "wilful," did not believe that his statement was true. Yet, the "Section 1621" perjury law requires a separate finding that the person did not believe his statement is true. Plainly, the belief element of the law is a kind of "loop hole" in the law. And so, the lack of a corrupt requirement for a conviction coupled with the belief allowance for an acquittal, makes the law wholly elastic, and provides the potential for arbitrary application and prosecutions for oppressive purposes, including perjury entrapment, since the law tends to encourage a person to frame his testimony so as to take protection from the belief provision of the law, perhaps even rationalizing that he believes his statement is true, though others may find it to be false.

In contradistinction, the original (1790) perjury law, which was founded on the English common law, has not such a confusing provision, and is exacting in the criteria for criminal perjury. There, we find that the common law at the time of the making of the Constitution was to recognize that a person might, due to the weaknesses we all have in us of human nature, make a false statement upon surprise or the like (an unusual, deeply personal embarrassing question), which would still not be regarded as a crime, a crime having harsh consequences of imprisonment and disqualifications to give evidence in any court, as well as heavy money penalties. Should such harsh punishment be the consequence of lapses arising from common human infallibility? Also, if the false statement is not material to the issue or point in question, then it would also be regarded as not a criminal perjury. What if I believe that I should not have to answer that question, as it is not material to the fact in dispute; but by refusing to answer, I create the suspicion of what the truth may be that I wish not to disclose; and so I tell a "white lie" I tell not the truth on that point. Such questions may be posed, in order to perceive the principles of justice that were probably behind the plainly tempered definition of criminal perjury given by Blackstone. Evidently, the judgment of society and their law makers, and the determinations of the courts of justice, at the time of the making of the Constitution was that a perjury is not necessarily a crime, and could be excused and forgotten, if the perjury was not absolute and positive, or if it was the result of a surprise (or the like?), or if it was about a matter of an awkward, personal embarrassment that is not really material to the issue of the suit.

Let us examine the present perjury law and the 1790 law more closely; for there are even more differences, and defects in the present law. To facilitate a comparison between the common law definition of criminal perjury that was adopted by the 1790 law, the definition laid down in Blackstone's Commentaries, and the present federal law, 18 U.S.C. § 1621, a chart of the elements of the crime of perjury for each law is given in the next pages.
 
 

Referring to the chart for 18 U.S.C. § 1621, the following observations are noteworthy:

1. The present § 1621 law does not require a lawful oath, nor specifies any particular form of an oath that would qualify for the perjury law, other than to indicate, of course, that the person taking "an oath" promises to testify "truly." There is no requirement in this perjury law that the person shall depose the whole truth.

In contradistinction, Blackstone defined the lawful oath which is to be administered to the "witnesses" in a trial, and to the parties in suits in equity, as prescribed by the common law of England. Said Blackstone:

"The oath administred to the witness is not only that which he deposes shall be true, but that he shall also depose the whole truth: so that he is not to conceal any part of what he knows, whether interrogated particularly to that point or not." (III, Ch. 23, p. 372)

So, the witness is not to conceal what he knows. This requirement imposed on the witness is consistent with one of the means for achieving a thorough investigation of the truth in the trial, called compulsory process, namely, a writ of subpoena ad testificandum, or "compulsory process, to bring in [to the court for purposes of testimony] unwilling witnesses." (III, Ch. 23, p. 369) The plain object of the trial is to discover the truth. But to allow a witness with impunity to tell the truth, but not the whole truth, to permit him to conceal matters which he knows, whether interrogated particularly to that point or not, would defeat the purpose of compulsory process to bring him into the court to provide evidence, parol evidence. Therefore, by the lawful oath required for wilful and corrupt perjury, under Blackstone's definition, and the evident meaning of the 1790 federal perjury law, a witness (and a party in a suit in equity) may not conceal what he knows by declaring that "I do not recall," or "I do not remember," or the like; or by thinking that the words used in a question can have different meanings, when he knows what the interrogator is really asking about. Although a word in a question may be subject to definition, as what is a "sexual affair," if he truly knows the facts of the matter which he is asked about, but has not the will to bring them into more active memory, then he conceals. Of course, whether or not he lied by stating that "I do not recall," or the like, is a matter of fact for a jury to decide in criminal perjury trial, by considering evidence that he must have known, and concealed what he knew.

2. For a perjury to be criminal under § 1621 the testifier or deponent must state wilfully, and contrary to his oath, "any material matter which he does not believe to be true." But this law does not define the expression "any material matter." This author could not find in the federal laws, nor in the Federal Rules of Civil Procedure, nor in the Federal Rules of Evidence, any legal definition of "material matter." Neither the Supreme Court-made Federal Rules of Civil Procedure, nor the Supreme Court-made Federal Rules of Evidence, define this expression. In Rule 26(b)(1) of the Federal Rules of Civil Procedure, regarding the "Discovery Scope and Limits," there appears the expressions (a) "any matter, not privileged, relevant to the subject matter involved in the pending action," (b) "discoverable matter," and (c) "admissible evidence." For the context of these expressions Rule 26(b)(1) is re-printed as follows:
 

"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

The Federal Rules of Evidence functions not to define "matter," as the matter, of course, is defined or introduced in the proceeding of a suit by the parties. These rules define, if we can call it that, what may be evidence that is "admissible." (One presumes that the rule means, admissible at the trial.) Rule 401 and Rule 402 of the Federal Rules of Evidence prescribe rules for "relevant evidence" and "admissible evidence," as follows:
 

Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Is "any fact that is of consequence to the determination of the action" a "material matter" as required by § 1621 of the federal perjury law? The law is silent on this point. Rule 603 of the Federal Rules of Evidence prescribes a rule as to the oath to be administered to persons testimony in a court proceeding

Oath or Affirmation. Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so."

But this rule does not say that a witness shall testify to any "material matter," but only that before testifying, he shall be required to declare that he will testify truthfully. (Observe that the rule does not require that the "witness" tell the whole truth.) Therefore, a "material matter" is not defined anywhere! Consequently, the person testifying, with knowledge of the § 1621 perjury definition, could assume that he need only testify truly to "material matters." Thus, he could believe that a false statement is exempted from the perjury crime, if the statement is not of a "material matter."

3. The § 1621 perjury law requires that in order for a person to be guilty of a crime of perjury, he must not only wilfully, and contrary to his oath, state a "material matter," but also that he must have not believed that his statement is true. Manifestly, according to this law, the belief element is distinct and separate from the wilful element; for the belief element is a separate, distinct and final required element of the commission of crime of perjury by that § 1621 law. Yet, as discussed before, these two separate elements are contradictory, since the wilfully stating a "material matter" which is contrary to his oath necessarily means that he did not believe his statement is true.

Before these elements of the § 1621 perjury law are applied to the case of Mr. Clinton, the common law definition of criminal perjury, ascribed by the 1790 federal perjury law, and given in Blackstone Commentaries, is considered. See the Chart of the Elements for the perjury as defined by Blackstone. The elements of criminal perjury of the 1790 law were:

1. A lawful oath must be administered to the person, and by a person empowered to administer the oath.

2. The testimony must be given in a court of law, or before a magistrate or proper officer having authority to administer the oath.

3. The person must have sworn wilfully, absolutely (positively), and falsely in a matter which is material to the issue, that is, some point material to the question in dispute, where the issue is defined in Blackstone's Commentaries as the fact alleged or affirmed on the one side, and denied on the other (Book III, Chapter 20.)

The definition of criminal perjury laid down in Blackstone's Commentaries on the Laws of England, on which the 1790 perjury statute was certainly intended, is wholly different than § 1621. In the present federal perjury law, § 1621:

(1) A lawful oath is not required. A lawful oath can only mean an oath as prescribed by law. Mr. Clinton was not administered a "lawful oath," since the oath that he was administered is not prescribed by statute law, not even by the Supreme Court-make Federal Rules of Civil Procedure, nor by the Supreme Court-made Federal Rules of Evidence. See, for instance, Rule 603 of the Federal Rules of Evidence. The oath administered to him was to tell "the truth, the whole truth, and nothing but the truth;" whereas the oath required for perjury was that he must have only promised to testify "truly," and then only on "material matters." The Independent Counsel emphasized in his accusations against Mr. Clinton, given in his sworn testimony before the Judiciary Committee of the House of Representatives on November 19, 1998, that Mr. Clinton did not tell the whole truth in his January 17, 1997 deposition in Paula Jones. However, the oath administered to Mr. Clinton was not a lawful oath, in that it was not prescribed by law, and therefore, an oath chosen at the whim of the persons assuming the power to select the oath. (One wonders whether the oath given in any particular proceeding is tailored?)

(2) A "material matter" is undefined. What matter? In Blackstone's definition of perjury, the matter is precisely defined: a matter which is material to the issue, the issue of the case. In the Paula Jones case, the issue was, the fact of defendant Clinton having sexually harassed plaintiff Jones, as the plaintiff alleged but which the defendant denied. The matter of Mr. Clinton's sexual relations with other women was plainly not material to the issue of the case. As Blackstone defined "legal evidence" as that "which demonstrates, makes clear, or ascertains the truth of the very fact in issue," any sexual relations which Mr. Clinton may have had with other women, could not demonstrate, make clear, or ascertain the truth of the fact that he had sexually harassed plaintiff Jones as she alleged. Plainly, facts of Mr. Clinton's sexual relations with other women are not even "collateral circumstances" of the very fact in issue in that case; for by Blackstone, "circumstantial evidence" is still evidence, signifying that which makes evident, or makes clear or ascertains (makes certain) the truth of the very fact in issue.

As § 1621 is written, the law gives the judge of a United States Court the power to declare what matter is or is not "material." But by the perjury law as defined by Blackstone, which the 1790 Congress certainly intended, the "matter" is confined to a "matter material to the issue or point in question, which is the matter defined by the parties, not by the judge, the fact which one party affirmed, but which the other party denied; and, therefore, only that fact is the issue, according to Blackstone's Commentaries. And whether the matter is material to the issue, or not, is a question of fact for the jury to decide. Also, the United States attorneys and grand juries ought to abide by this element of the proper perjury law, and not undertake and endorse improper prosecutions for perjury.

Therefore, the § 1621 perjury law is discretion power given to the judge and government prosecutor, hence the power to oppress; hence, the law is improper, and therefore, in violation of the Constitution.

(3) Even if the false testimony on some point that is material to the issue of the case, there would be no criminal perjury by the 1790 law, unless the person swore absolutely and positively, as well as falsely, and also not upon surprise or the like. In the case of Mr. Clinton's January 17 deposition, it appears from the deposition transcript that his answers to questions about whether or not he had "sexual relations" with Miss Lewinsky, and whether or not he was ever alone with her, were not positive and absolute. The Independent Counsel, however, as well as the House of Representatives, regards the President's testimony on this matter as criminal perjury or lying under oath. To the question of his ever being alone with Miss Lewinsky, Mr. Clinton testified,

"I don't recall ... it seems to me she brought things to me once or twice on the weekends. She was there. ...It's possible that she, in, while she was working there, brought something to me and that at the time she brought it to me, she was the only person there. That's possible."

The questioner, and attorney for plaintiff Jones responded,

"So I understand, your testimony is that it was possible, then, that you were alone with her, but you have no specific recollection of that every happening?"

Whereupon, Mr. Clinton, answered:

"Yes, that's correct. It's possible that she, in, while she was working there, brought something to me and that at the time she brought it to me, she was the only person there. That's possible."⁽¹⁾

Later, Ms. Jones's attorney came back to the matter of Mr. Clinton every being alone with Miss Lewinsky. He asked Mr. Clinton:

"At any time have you and Monica Lewinsky ever been alone together in any room in the White House."

Mr. Clinton answered:

"I think I testified to that earlier. I think that there is a, it is I have no specific recollection, but it seems to me that she was on duty on a couple of occasions working for the legislative affairs office and brought me some things to sign, something on the weekend. That's I have a general memory of that."

These statements by defendant Clinton might seem not to be positive and absolute false testimony that he was never alone with her, on the one hand. But on the other hand, to declare that "I don't recall," and that "that's possible," appears to have been false testimony, in light of what has been testified to, including Mr. Clinton's own "grand jury" testimony of August 17, 1998, according to the Independent Counsel's Referral report and the transcript of testimony, accompanying the report, especially that of M. Lewinsky. Mr. Clinton certainly did not tell the whole truth in his deposition.

As to his testimony about never having sexual relations with Monica Lewinsky, the facts of the deposition are these:

Question by Jones's attorney: "... And so the record is completely clear, have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court."

Answer given by Mr. Clinton after the judge ruled that the plaintiff's attorney may show to the "witness" "definition number one,"

A. I have never had sexual relations with Monica Lewinsky. I've never had an affair with her."

So, his answer was not positively and absolutely false, as he did not testify to the effect:

"I have never had sexual relations with Monica Lewinsky as that term is defined in Deposition Exhibit 1 as modified by the Court."

(As this author was informed in a British Court of Inquiry in 1988, in which he had cross examined a government official of nuclear energy matters, the judge pointed out that, after I pressed the official for a further answer to a question, "Dr. Webb, you may ask your questions, and he may give his answers.) We all know that Mr. Clinton maintains that "sexual relations" means having sexual intercourse. So, not swearing absolutely and falsely to the "sexual relation" question, Mr. Clinton in that instance did not commit the crime of wilful and corrupt perjury of the 1790 law, as defined in Blackstone's Commentaries on the Laws of England; but under the present § 1621 federal perjury law, which omits the absolute and positive elements, Mr. Clinton could be prosecuted, according to the whim of the prosecuting attorney for the United States, and convicted according to the whim of the judge of the criminal court who would instruct the jury as to the law. (And the judges not having sworn to support the Constitution, but only to perform their office under the Constitution and the laws.)

Later, the matter of whether Mr. Clinton committed perjury under the present federal perjury law, when he was asked in his January 17 deposition in Paula Jones, "Did you have an extramarital sexual affair with Monica Lewinsky?" will be discussed.

(4) Finally, the § 1621 law provides for an entrapment for perjury, by including the distinct element of belief: that the testifier did not believe that what is stated wilfully is true. This point was previously discussed. This belief element for perjury is explicitly missing in Blackstone's definition of criminal perjury; though it is essentially (inseparably) present in the element of wilful.

One can be sure that the belief element is quietly acceded to in cases of perjuries committed by rich and powerful friends in or out of the United States Government establishment, in little noticed judicial proceedings where the public will never come to know of such "loop-holes" in the law; but when a person who annoys the Government or a powerful faction, the "expression" "which he does not believe to be true" will be said to be a fact for the judge or the jury to decide.

This § 1621 perjury law, as with all other laws that the United States Government has made, are framed and calculated to give the Government and its judiciary complete power and discretion to decide a dispute in the way that the Government wants it decided.

The present federal statute on perjury, therefore, is oppressive, and, hence, an improper law. For certainly, the people who ordained and established the Constitution intended that a perjury is a higher crime than bribery, and certainly intended, therefore, that for that to be so, the elements of criminal perjury be those set down in Blackstone's Commentaries on the Laws of England, as is evident from the fact that the 1790 perjury law plainly adopted the crime of wilful and corrupt perjury as prescribed by the common law of England, and defined in Blackstone's treatise. Again, by Article I, Section 8 of the Constitution, the Congress is bound to make only those laws which shall be both necessary and proper for carrying into execution the judicial power of the federal Government. It is evidently proper that Congress shall not relax the requirements of criminal perjury in view of the fact that Article II, Section 4 plainly embraces perjury among the expression "Treason, Bribery, or other high Crimes and Misdemeanors," inasmuch as Blackstone placed perjury higher than bribery in his enumeration of offences against public justice.

Material Matter

The element of "material matter" of the present federal perjury law, 18 U.S.C. § 1621, needs to be further investigated. The Blackstone definition of wilful corrupt perjury, as before mentioned, requires that the false testimony must not only be wilful, absolute and positive, but that the perjury must be "in a matter material to the issue or point in question." We may ask: Just what precisely does this requirement mean? Let us carefully investigate the expression.

The meaning of the word matter is clear. "Matter" is the subject of action, concern, or discussion. It is some thing or affair, or some subject: a thing being dealt with, as the matter of Mr. Clinton's sexual relation with Monica Lewinsky, or the matter of Mr. Clinton's behavior in regards to Paula Jones. Each matter is distinct. Or, we could define a matter as Mr. Clinton's sexual relations with women. The word material literally means the same as matter, as is confirmed by Webster's New World Dictionary. We say that a steel ball is a lump of "matter," or alternately, a "material object." The word material is purely and simply the adjective of the word matter.The word material as used here qualifies the object.

Now, in Blackstone's criminal perjury definition, "a matter material to the issue" that is sworn wilfully, absolutely, and falsely, is plainly a restriction as to the matter of a criminal perjury. The 1790 law, which plainly adopted the offense of perjury as defined in Blackstone's Commentaries, made it not a crime of wilful and corrupt perjury for swearing wilfully, absolutely and falsely in any matter, but in a qualified matter, specifically, in a matter material to the issue. Now, we ought to consider how we might qualify the matter to be proper or improper for a criminal perjury law. Some possibilities for consideration are:

1. any matter; if we do not want to disregard lying in any case.

2. important matter.

3. matter related to the issue of the suit.

4. relevant matter; but them relevant to what?

5. matter pertaining to the issue.

6. substantive matter.

7. circumstantial matter.

8. material matter.

9. matter material to the issue.

10. matter involved in the proceeding.

11. matter material to the proceeding.

Surely, the examination of witnesses (parol evidence) in the trial of a civil action ought to be confined to matters pertaining to the issue of the suit, and not wander off to elicit testimony on any matter under the sun. So, the matter of a perjury definition ought to be qualified. Does material matter qualify it? No, since matter is material in the noun form. It means the same! So, "material matter" means literally "material material." It is meaningless as it is absurd. Pertinent matters seems something having somewhat of a closer connection to the matter of fact in issue than relevant matters. Relevant matter implies the existence of an associated, but primary matter or subject matter; where then relevant matter is a different matter, but nevertheless related to the primary or subject matter. A relevant matter cannot be all pertinent matters. For a relation is a connection between one thing and another; but pertinent matter can include matter that is the matter of fact in issue. (By the way, the word pertinent, derived from pertain, has by its etymology a meaning to stretch.) A relative is always with reference to some subject person, as a son to a father.

Therefore, the expression "material to the issue" must be the definition of the qualification of a matter which the Blackstone perjury definition prescribes for a criminal perjury matter. And since material is the adjective of matter, it results that Blackstone's definition was so framed as to preclude any matters other than the matter specific to the fact in issue, by avoiding use of such vague qualifiers as relevant, or pertinent, or substantive, and the like. Even matter of the fact in issue is a bit vague, because the word of would mean matters belonging to the issue. Also, the word to is important in Blackstone's qualification of matter, namely, material to the issue, since it directs or points to that specific matter, namely, the issue.

Qualifiers such as relevant matter, pertinent matter, substantive matter, or important matter, all tend to stretch or extend the field of the matters that would be subject to a potential perjury matter, and also to give to the judge of the court the discretion of deciding on the permissibility of any such matters. Therefore, to determine the meaning of the expression, "a matter material to the issue," we must consider the qualifier "material to the issue" as simply specifying what is the "matter," or the field or family of matters; as material is the matter, but now with the qualifier "to the issue," that is, the matter is directed to a point: that point being, "the issue."

So, the word material alone does not qualify matter; for it simply reiterates the word matter in the adjective form in setting up for the specification of the certain matter, or field of matters, intended. Consequently, the expression "material to the issue" is the absolute restriction of the potential perjury matter. It absolutely restricts the matter to the matter of the very fact in issue. The expression admits of no broadening of the field or "scope" of matters, as would relevant matters, or the like, that would give the judge or jury a discretion power as to what matter is in the field of a possible criminal perjury matter. As it is, the Blackstone definition "matter material to the issue" confines the matter to the issue, which is a thing determined by the parties to the suit, not by the judge of the Court: The issue being the fact affirmed on the one side and denied on the other.

The law is interested in rendering justice. If a person swears wilfully, absolutely, positively, and falsely on a matter material to the issue, then, of course, the verdict of a jury can be wrongly affected, to the injury of one of the parties. Hence, we should deem it a crime. (If the testimony is not absolute and positive, as "I do not recall," the jury would know that the fact is not made clear at all, and should take that fact into account in making its finding.) But if the matter sworn is not "material to the issue," it cannot be admissible evidence anyway, that is, the jury ought not to give it any weight, and ought not to have even heard such evidence or testimony, since legal evidence is that which demonstrates, makes clear, or ascertains the truth of the very fact in issue. So there is no point in creating more strife or contention by prosecuting persons for perjuries of matters that are not material to the issue of a case. The principle behind the 1790 perjury law, and Blackstone's definition of wilful and corrupt perjury is to just disregard and forget such non-criminal perjuries. Only warn the members of the society of perjury penalties if one swears wilfully, absolutely, positively, and falsely on a matter material to the issue.

The present perjury law of the United States Government, therefore, is improper, in that it gives discretion power to the criminal court to determine whether a sworn statement is a "material matter." It is relevant in this regard to mention that the Independent Counsel, Mr. Starr, in the Appendix to his Referral Report, Tab J, "Legal Reference," gives an analysis of sorts of the § 1621 perjury statute, and, in the words of Appendix, it contains

"a brief summary of the statutes and legal precepts that, in the context of a criminal proceeding, would be germane to a determination of the criminality of the conduct described in the Referral."

By this statement Mr. Starr asserts that there are laws other than, and in addition to, those laws which are prescribed by "statutes," laws which he calls "legal precepts," and which he later, in the section on "perjury," he characterizes as "the common law." This section reads as follows (verbatim and with its footnote number 4 included):

I. Perjury -- 18 U.S.C. §§ 1621 & 1623

Two separate statutes address the crime of perjury. 18 U.S.C. § 1621 covers perjury "generally," while 18 U.S.C. § 1623 specifically addresses false declarations before a grand jury or court. The elements of perjury under § 1621 and § 1623 are virtually the same but, as discussed below, with § 1623 Congress eased some of the prosecution's burden imposed by the common law.

A. Elements of § 1621

"The essential element of the crime of perjury as defined in 18 U.S.C. § 1621 ... are (1) an oath authorized by a law of the United States, (2) taken before a competent tribunal, officer or person, and (3) a false statement wilfully made as to facts material to the hearing." 4

The statement of the "elements of § 1621," given in quotation marks, is, presumably, a direct quote from the Supreme Court opinion in a case United States v. Hvaas. Two points: Firstly, we see that the Independent Counsel regards the Supreme Court dicta as a law of the United States, that is, part of "the common law." For the quotation from the Court opinion in United States v. Hvaas is given as a "legal precept." Therefore, we see that the Supreme Court assumes legislative power in conjunction with the Congress, where the Congress by its § 1621 law declaring that a "material matter" is a potential perjury matter," with the Supreme Court joining in the making of the federal perjury law to clarify or expound that this "material matter" element means a matter "material to the hearing," so as to preclude a restrictive interpretation that it means a matter material to the issue.

If the Supreme Court judges were to support the Constitution of the United States, they would hold that the § 1621 perjury law is not a proper law as required by Article I, Section 8 of the Constitution, because "material matter" is meaningless! and gives the judges an unconstitutional discretion power. But instead, the Supreme Court acted to establish the improper discretion power, a power given to judges of the courts of the United States to determine a "material matter" as matter "material to the hearing." Thus, we see that the Supreme Court has interpreted § 1621 precisely as the law was evidently written to mean, without declaring so positively, that would alarm the public; namely, that a criminal perjury matter is any matter which the judge, or the judiciary, or the Supreme Court, permits at its discretion as a subject of "discoverable information" or a subject matter at trial, defined as the matter "material to the hearing" as conducted by the Court, or "competent tribunal," thus making § 1621 a perjury law wholly different than the original 1790 perjury law.

It is also significant that the Independent Counsel characterizes the Supreme Court dictum as "common law" of the United States, or "legal precepts." This assertion too is bold usurpation of power for the Judges of the Courts of the United States, to assume that the dicta of the Supreme Court makes the law of the United States, as part of the "common law." But as proved elsewhere in the present Treatise (__________), there is no "federal common law" which the Supreme Court is constitutionally empowered to make by issuing its case dicta.

So, the "Legal Reference" or "legal precepts," which the Independent Counsel gives by quoting the Supreme Court dictum on the meaning of the elements of § 1621 is not any law on perjury binding anyone. As mentioned and proved earlier, the Congress is not empowered to make any laws they please. The laws which the Congress shall have the power to make for carrying into execution the judicial power, as laws prescribing offenses against public justice, shall be necessary and proper a mandate from the people who ordained and established the Constitution. Therefore, what perjury law can be proper can only be determined by consulting the crime of wilful and corrupt perjury as the people had certainly intended such a crime to be, when they ordained and established the Constitution. For the Constitution was not to be the whole code of laws under the newly created United States Government.

The responsibility for making the necessary and proper law for carrying into execution the powers vested in the Government was given to the Congress; and so the Congress is empowered "To make all [those] Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Article I, Section 8) So, the Congress ought to have stayed with its 1790 perjury law, and even acted to include in it the Blackstone definition to be explicit as to the elements required for "wilful and corrupt perjury." Certainly, Blackstone's definition was intended, since those Commentaries was the chief law book for the country and defines the crime of "wilful and corrupt perjury."

Judge Wright's December 11, 1997 Order
giving her materiality Standard for
discoverable Information.

There is still another aspect which reveals the oppressive, unconstitutional behavior of the Judiciary in regards to the now rampant and arbitrary prosecutions for criminal perjury, besides the discretionary "material matter" element of the present federal perjury law, and this pertains to the wording used by Judge Wright in the Paula Jones proceedings in the United States District Court in Arkansas in ruling to "compel" defendant Clinton to answer questions about the matter of Mr. Clinton's sexual relationships with Ms. Lewinsky. In so ruling, under Rule 26 of the Federal Rules of Civil Procedure, Judge Wright held in effect that the "information" that was sought by the plaintiff's attorneys in the "discovery" proceeding is "relevant to the subject matter involved in the pending action," to quote from Rule 26(b) of those unconstitutional federal rules.

Observe how the "discoverable information" Rule 26(a) is even a less restricted field of matter than "a matter relevant to the issue." For by Rule 26(b) the information sought by "discovery" (interrogatories and oral depositions) is not even relevant to the issue, but relevant to the subject matter involved in the pending action. Hence, the attorneys for plaintiff Jones only needed to raise the subject matter for interrogation in the "pending action" as the matter of defendant Clinton's sexual relations with certain named women (plural), and then that matter became involved in the pending action. But on what grounds, standard, or criterion, could the Court judge, Judge Wright, have had to determine whether a "matter," or "information sought," is "relevant to the subject matter involved in the pending action"? A "common law" standard? But previous court decisions on admissible or relevant evidence in sexual harassment suits are not law of the land. Judge Wright laid down the "standard" which she used in her December 11, 1997 order:

"The standard that this Court will utilize in addressing any question regarding the necessity and scope of the President's testimony at any deposition or trial will be "if the Court is satisfied that his testimony would be material as tested by a meticulous standard, as well as being necessary in the sense of being a more logical and more persuasive source of evidence than alternatives that might be suggested." United States v. Poindexter, 732 F.Supp. 142, 147 (D.D.C.1990)."

Alluding to this declaration, the Independent Counsel said this in his Referral report:

"... Throughout the pretrial discovery process in Jones v. Clinton, United States District Judge Susan Webber Wright ruled, over the President's objections, that Ms. Jones's lawyers could seek various categories of information, including information about women who had worked as government employees under Governor or President Clinton and allegedly had sexual activity with him. Judge Wright's rulings followed the prevailing law in sexual harassment cases: The defendant's sexual relationships with others in the workplace, including consensual relationships, are a standard subject of inquiry during the discovery process. Judge Wright recognized the commonplace nature of her discovery rulings and stated that she was following a "meticulous standard of materiality" in allowing such questioning."⁽²⁾

Mr. Starr quoted the Court order at length in his Appendix but without an commentary or elaboration. (See Tab C. Procedural Background and History of Jones v. Clinton.) Judge Wright does not say in her December 11 order just what is the "meticulous standard" is. Her statement is nonsense. In effect she ruled in part:

The standard which this Court will use in deciding on the questions which defendant Clinton shall be compelled to answer (under pain of imprisonment for contempt of Court if he should refuse to answer such questions) is this: Whether the Court is satisfied that his testimony on certain questions would be material by a meticulous standard.

Now, focus on the keyword of the standard which the judge declared, namely, material. Again, the judge declared that if the Court is satisfied that Mr. Clinton's testimony (answers to questions on certain matters) which he shall be compelled to give would be material, where the materiality (to use the Independent Counsel's word) is to be tested by a meticulous (but unspecified) standard, as well as being a "more logical and more persuasive source of evidence," she would then establish the scope of the testimony required of the President, so as to permit questioning on that scope of matters, and then compel the President to answer the questions put to him about those matters. Did Judge Wright mean, by "material" testimony, or "material ... evidence," such evidence called "relevant evidence?" As the Federal Rules of Evidence allow the thing called "relevant evidence," she must have meant not necessarily only that evidence which makes clear the truth of the very fact in issue, but also evidence to other points, or evidence of other matters, namely, relevant matters.⁽³⁾

Why did Judge Wright use the word "material?" She was required, if she were to abide by the Rule 26 of the Supreme Court-made Federal Rules of Civil Procedure, and Rule 401 of the Supreme Court-made Federal Rules of Evidence, to determine whether the Clinton testimony would be "relevant to the subject matter of the pending action," not "material". In view of those rules, we should have expected her December 11, 1997 declaration to read:

The standard which this court will utilize in addressing any question regarding the necessity and scope of the President's testimony at any deposition or trial will be: If the court is satisfied that if the information sought in the deposition or at trial would be relevant, as this Court shall determine.

If relevant, Mr. Clinton's testimony would be plainly be a "source of evidence," by the Federal Rules of Evidence, and therefore, there would have been no need for the second criterion of her two-criterion "standard" of her actual December 11th order, that second criterion being:

"as well as being necessary in the sense of being a more logical and more persuasive source of evidence than alternatives that might be suggested."

So, the material element of Judge Wright's standard is an additional criterion , separate from the "as well as" criterion about the necessity for a more logical and more persuasive source of evidence. Yet, this material criterion is not present at all in Rule 26, nor any where else in Chapter V, Depositions and Discovery, of the Federal Rules of Civil Procedure. And as before mentioned, it is not present in the Supreme Court-made Federal Rules of Evidence.

So then, what purpose could Judge Wright have had to introduce the additional materiality criterion or standard, but corruptly and oppressively to set up Mr. Clinton for a perjury conviction under § 1621, by ruling and establishing as a matter of law, before he testified at his deposition on embarrassing matters of sexual relations with other women, matters plainly having the potential for temptations of perjury, or not telling the truth, or the whole truth, that his testimony is "material;" hence, a "material matter;" hence, precluding a jury in a criminal perjury proceeding against Mr. Clinton from making a finding that his testimony was not a "material matter." And, of course, as quoted earlier, the Independent Counsel seized on Judge Wright's "material" standard as the key word for proving the commission of the crime of perjury under § 1621 of the United States criminal code (Title 18). The Independent Counsel's Referral report states:

"On January 17, 1998, Ms. Jones's lawyers deposed President Clinton under oath with Judge Wright present and presiding over the deposition. Federal law requires a witness testifying under oath to provide truthful answers. The intentional failure to provide truthful answers is a crime punishable by imprisonment and fine.3 At the outset of his deposition, the President took an oath administered by Judge Wright: "Do you swear or affirm ... that the testimony you are about to give in the matter before the court is the truth, the whole truth, and nothing but the truth, so help you God?" The President replied: "I do." At the beginning of their questioning, Ms. Jones's attorneys asked the President: "And your testimony is subject to the penalty of perjury; do you understand that, sir?" The President responded, "I do."

The Independent Counsel in his report then cites Mr. Clinton's testimony that he had no extramarital affairs with Monica Lewinsky, as "evidence that President Clinton lied under oath during the civil case," hence implying that the crime of perjury was committed. Such is the importance of the "material matter" element of the § 1621 perjury law. This law is arbitrary, hence, oppressive, as the preceding analysis demonstrates.

Trifling collateral Circumstance
v. Material Matter.

The material specification of the perjury element of Blackstone's definition of criminal perjury is somewhat illustrated by the explanative "for if it only be in some trifling collateral circumstance," to which no regard is paid," then a positive, absolutely false statement is not a criminal perjury. In the next part of this Treatise, Part V, the thing circumstantial evidence is treated in connection with this Author's critical review of the Supreme Court-made Federal Rules of Evidence. The circumstances of the very fact in issue are matters that can be judged. They are closely connected to the very fact in issue as compared to matters that would fall under the Supreme Court's contrivance of "relevant evidence," certainly. A "collateral circumstance," being still a circumstance of the very fact in issue, must be a kind of secondary circumstance such that a trifling collateral circumstance is not a matter material to the issue.

This case of a matter not material to the issue, namely, a "trifling collateral circumstance," is the only case offered by Blackstone for illustrating a matter not material to the issue. But this case does not necessarily mean that a matter material to the issue can be any matter relevant to the issue according the judge's discretion. For in context with Blackstone's discussion on legal evidence, the thing circumstantial evidence is still evidence, signifying that which demonstrates, makes clear, or ascertains the truth of the very fact in issue, that is, that which makes the truth of the very fact in issue evident. Said Blackstone, circumstantial evidence is to be admitted at trial when positive proof is not to be had. Clearly, Mr. Clinton's sexual relations with other women are not circumstances of the very fact in issue in the Paula Jones case, the fact as alleged that defendant Clinton sexually harassed plaintiff Jones. Those relations may be relevant matters in the mind of those who wish to judge a man on the basis of the plaintiff's and defendant's credibilities, instead of on the basis of evidence, evidence signifying that which demonstrates, makes clear, or ascertains, that is, makes evident, the truth of the very fact in issue, which in the Paula Jones case, the issue was whether defendant Clinton sexually harassed plaintiff Jones as she charged. Plainly, the tenor of the Constitution is to judge the issue solely on the basis of evidence to that issue.

And the lawful Oath

Finally, it is mentioned that the § 1621 perjury law requires only that a person being depose testify "truly." There is no perjury penalty for not telling the whole truth. Nor do the federal laws require an oath to tell the whole truth. The Supreme Court-made Federal Rules of Evidence only requires that a witness testify "truthfully." (Rule 603) Thus, the perjury law encourages the party to protect himself by not telling the whole truth about everything and anything about matters which he believes are not "material." The present perjury law does not require that the person who is about to testify to take a lawful oath. This is another aspect of the present federal perjury law that makes it amenable to arbitrary and oppressive use. Mr. Clinton was not adminsitered an oath prescribed by law! S, he was not under a legal obligation to tell the whole truth.

Perjury by § 1623 of Title 18
of the United States Code.

The report of the Independent Counsel cites another federal law on perjury besides that of § 1621, implying that Mr. Clinton had violated that "separate" law as well. He refers to § 1623 of Title 18, which is re-printed below. That section has two separate definitions of criminal offenses, subsection (a) and subsection (c). The first makes it a crime of "false declaration," with punishment up to five years in prison, for knowingly making any false material declaration under oath. This law is improper (violation of Article I, Section 8 of the Constitution), because its "material" qualifier does not restrict the perjury to the matter material to the issue, and because it lacks the absolute and positive elements of Blackstone's definition of wilful and corrupt perjury. Unlike the § 1621 law, this § 1623 law is void of a belief element, thereby removing that potential loop-hole; but the omission does not render the law proper.

The second and separate criminal law, § 1623(c) makes it a crime of "false declaration" if a person under oath knowingly makes two declarations "material to the point in question" which are irreconcilably contradictory. (Again, up to five years in prison.) Section 1623 allows a defense against a prosecution that the defendant believed each declaration was true. With § 1623(c) a federal criminal perjury law adopts Blackstone's element of "material to the point in question," which is proper (not present in the § 1623(a) law; but this particular law permits a conviction without any proof other than the person's own two contradictory declarations. (In contrast, the common law of England required for perjury conviction that at least two witnesses to prove the perjury are required. See Blackstone, IV, Ch. 27.) However, if a person makes two declaration that are contradictory, then the perjury is not absolute and positive; for his testimony is confusing due to its internal contradiction. So, the perjury is not absolute or positive. It is confusing and not credible, because of the contradiction. Therefore, it would not be perjury under the Blackstone definition of wilful and corrupt perjury adopted by the 1790 law of Congress.

Therefore, the two separate criminal laws of § 1623 of "false declaration" are perjury laws independent of § 1621, giving United States attorneys even greater handles for arbitrary and oppressive prosecutions of person (fellow citizens), appearing as witnesses, even as parties, in any judicial proceeding, or other official proceeding. As with the § 1621, § 1623(a) and § 1623(c) laws should be compared with the 1790 perjury law aided by Blackstone's definition of wilful and corrupt perjury.
 

§ 1623. False declarations before grand jury or court

(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declamation, shall be fined under this title or imprisoned not more than five years, or both.

(b) This section is applicable whether the conduct occurred within or without the United States.

(c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grant jury of the United States, the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if

(1) each declaration was material to the point in question, and

(2) each declamation was made within the period of the statute of limitations for the offense charged under this section.

In an prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury. It shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true.

(d) Where, in the same continuous court of grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.

(e) Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.

It is instructive to consider whether or not Mr. Clinton by his January 17, 1998 deposition in Paula Jones would have committed the crime of wilful and corrupt perjury under the 1790 law, had there not been the present federal perjury law that destroyed the integrity of, and superseded, the original law. If the Monica Lewinsky matter was material to the issue in Paula Jones (and plainly it was not, as before discussed), and if Mr. Clinton was legally compelled to submit to examination (and he was not, to be demonstrated in Part VII), then it seems clear from his January 17 testimony, that he would have committed criminal perjury. For example, he was asked:

Q. "Did you have an extramarital sexual affair with Monica Lewinsky?"
A. "No."

Q. "If she told someone that she had a sexual affair with you beginning in November of 1995, would that be a lie?
A. "It's certainly not the truth. It would not be the truth."

Plainly, in the light of the testimony of Monica Lewinsky, as released by the Independent Counsel, and Mr. Clinton "grand jury" testimony of August 17, 1998, Mr. Clinton's answers would have been wilful and corrupt perjury, if the under the 1790 perjury law, if the matter of "other women" were material to the issue of the case, and if the court sat in equity, in which case, a party would be subject to compulsive examination (see Part VII).

Finally, as to whether or not a statement under oath constitute "wilful and corrupt perjury" made by an officer of the United States, such as the President of the United States, would be a question of fact and law which the Constitution has vested in the House of Representatives to investigate and determine in so far as an impeachment of officers of the Government, and for the Senate to try and judge; but only in so far as to the removal of the President from office. Only if a person has been removed from office or otherwise is no longer an officer of the United States, would he be subject to a possible criminal prosecution for the alleged crime of perjury or subornation of perjury by a legally appointed federal prosecutor. However, as the present law on perjury is not proper, as before shown, the House of Representatives and the Senate could not properly find and judge that a President has committed a crime of perjury on the basis of such law. Plainly, the Congress ought to make a proper perjury law; and in the meantime, there ought to be no criminal prosecutions on the basis of the present, defective laws.

The Criminal Offence of "Obstruction of Justice,"
as prescribed by present United States Statute,
is, like the present Statute Law on perjury,
defective and improper.

The Independent Counsel has cited the federal crime of obstruction of justice, 28 U.S.C. §1503 and §1512 with a penalty of up to ten years in prison for each case of the specific offenses which he has charged Mr. Clinton as having committed (the Independent Counsel's Referral report, and his November 19th testimony before the House Judiciary Committee). The pertinent portion of section 1503 is:

§ 1503. (a) Whoever ... corruptly, ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in sub-section (b).

(b) The punishment for an offense under this section is ... in any other case [not involving a killing, or attempted killing, or an offense against a petit juror, which have more severe punishments] imprisonment for not more than 10 years, a fine under this title, or both."

§ 15121. Tampering with a witness, victim, or an informant.

... (b) Whoever, ... corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to (1) influence, delay, or prevent the testimony of any person in an official proceeding ... shall be fined under this title or imprisoned not more than ten years, or both. ...

Mr. Starr has charged that Mr. Clinton has violated both of these federal statute laws, as well as the law on perjury, 18 U.S.C. §1621 and §1623. Mr. Starr in his November 19th testimony before the Judiciary Committee laid out the "essentials of the referral" he had earlier sent to the House of Representatives. Said he,

"The key point about the president's conduct is this: On at least six different occasions from December 17, 1997, through August 17, 1998, the president had to make a decision. He could choose truth, or he could choose deception. On all six occasions, the president chose deception, a pattern of calculated behavior over a span of months."

The first occasion, according to his account, is when the President telephoned M. Lewinsky at 2:00 a.m. on December 17, 11 or 12 days after he learned on December 5 or 6 that Ms. Lewinsky's name was on the witness list in the Paula Jones proceeding. (Ms. Lewinsky testified that it was usual for him to telephone at such hour in the night; and also testified that in the December 17 call, he spoke at first at some length about certain personal tragedies and illness of members of Betty Currie's family.) In the telephone conversation, by Mr. Starr's account, Mr. Clinton informed Ms. Lewinsky that her name was on that witness list, and suggested to her that she could sign an affidavit, and she could, in Mr. Starr's words, "use, under oath, deceptive cover stories that they had devised long ago to explain why Ms. Lewinsky had visited the Oval Office area." Mr. Starr charged that Mr. Clinton ought to have advised Ms. Lewinsky that if and whenever she is called as a witness, she should tell the truth of their "intimate relation," regardless of embarrassment, as Mr. Starr evidently thinks is required by the obstruction of justice criminal law, but that he, Clinton, did not do so, and instead he suggested to her that she offer an affidavit, and say something to the effect that she admits to seeing Mr. Clinton in the White House as an employee relation but without revealing their "intimate relationship."

Mr. Starr assesses Mr. Clinton's behavior in regard to that December 17th, 2:00 a.m. telephone conversation as an "unlawful effort to thwart the judicial process," and Mr. Clinton's "first direct effort to thwart the mandate of the Supreme Court," which was that Mr. Clinton stand the suit, instead of staying the suit until he left office, as Mr. Clinton requested by a motion in the District Court. By "thwart[ing] the judicial process" Mr. Starr made it clear in his November 19th testimony and in his Referral report that he means that Mr. Clinton violated the Sections 1503 and 1512 of the United States Criminal Code (Title 18). In his referral report, he called this "first direct effort" a "scheme to obstruct justice in the Jones case," and cited 18 U.S.C. §1503 and §1512, in particularly.⁽⁴⁾

It is plain, by Mr. Starr citing §1503 and §1512 of the United States criminal code, that he has accused Mr. Clinton (a) of corruptly persuading, or attempting to persuade, Mr. Lewinsky, and of having otherwise engaged in misleading conduct toward her, with the intent of influencing the testimony of that person in the Paula Jones proceeding; (b) of having corruptly influenced, and endeavored to influence, obstruct and impede "the due administration of justice," and therefore, (c) of having violated these two sections of the United States criminal code, with a maximum ten year imprisonment for each count.

This Author finds that these two sections of the United States criminal code, like that of the present federal perjury laws, are improper laws. By Article I, Section 8 of the Constitution, the Congress is not vested with power to make any (criminal) laws they please for carrying into execution the judicial power vested in the Courts of the United States, but only those laws which shall be necessary and proper. Nothing is more natural for a person who has been sued in a civil action to contact friends who may be involved in the matter, to discuss the matter of the suit, especially when a friend is marked by the plaintiff as a witness who may be subpoenaed to testify in that suit. The law against subornation of perjury of the common law of England, and the United States perjury law enacted in 1790, well protected each party of a suit against others procuring a witness to commit perjury.

But the §1503 and §1512 sections makes it a crime for any person to endeavor to influence the testimony of a possible witness in ways that another person may think is corrupt, or a misleading conduct on the part of the person attempting the influencing, without defining the end of the influencing attempted. Is the end perjury, or a perjury that is material to the issue of the suit? Or is the end that of influencing the person to avoid testifying on matters that the Independent Counsel thinks the defendant ought to know ahead of time what the plaintiff want to discover. If a defendant seeks to influence a witness to testify so as to hide the fact of an embarrassing sexual relation which is not material to the fact in issue in the suit, and otherwise to confine herself to testifying only to points that are material to the fact in issue in the suit, which in Paula Jones was: Did defendant Clinton sexually harass Plaintiff Jones as alleged in her complaint? and to advise her to tell the truth that she knows nothing about that matter, not having been any witness to that matter, then certainly, such "influencing" cannot be wrong; and it cannot not be a crime of subornation of perjury.

It is significant that among the twenty two species of offences against public justice given in Blackstone's Commentaries on the Laws of England, there is no offence of the kinds defined in §1503 and §1512 of the present United States criminal code (Title 18), and called generically crimes of "obstruction of justice" by Mr. Starr. The only obstruction to public justice crime of Blackstone's enumeration is the offence of "the obstructing the execution of lawful process." "Process," as defined strictly by Blackstone, is the means of compelling a defendant to appear in court, either to answer a charge, as in original process, or to appear in court for trial in a criminal case, as the "process upon an indictment." Process can also be a mesne process, which pertains to some intermediate process, as to summon juries, witnesses, and the like. And finally, process can be the final process, to execute the court judgment, or process of execution. So, process is the compulsion exercised by an executive officer or magistrate, as a sheriff or under sheriff, using force if necessary, to execute the commands of the judges of the courts of justice.⁽⁵⁾ The definition of this crime is evident by its name, "obstructing the execution of lawful process," which means the act of opposing the execution of any lawful process, or even abusing any officer in his endeavours to execute his duty, a felony. Thus, the offence of obstructing the execution of lawful process is tangible in its definition and clear, unlike the wholly arbitrary definition of "obstruction of justice" given in sections 1503 and 1512 of the present United States criminal code, as "obstructing the due administration of justice," and even less tangible, whoever merely endeavors corruptly to influence the due administration of justice gets tends years in prison.

Time does not permit this Author to review here all the charges of misconduct (perjury, subornation of perjury, and obstruction of justice, including witness tampering) as presented by Mr. Starr in his Referral report. But upon perusal, this Author finds that these charges have two common denominators: (1) the matter of "sexual relations with other women" in the Paula Jones proceeding; and (2) the grand jury testimony, arising out of the matter of (1) above. But because the Federal Rules of Evidence are unconstitutional, proved in Part V and VI,⁽⁶⁾ the matter of "other women" was not a legal matter for discovery in Paula Jones, there can be no criminal conduct as to any acts of Mr. Clinton, or any other person, to conceal the facts of that matter; as that matter was not legal matter for the court to inquire into; but on the contrary, the rights of privacy of Mr. Clinton, and others who were interrogated in that unconstitutional "criminal investigation" conducted by the Independent Counsel with the grand jury were infringed, and badly so.

Plainly, the present obstruction of justice statutes of the United States Government are completely indefinite as to the definition of wrong doing. An obstruction of justice, and an endeavor to influence corruptly the due administration of justice, is like a blank check, giving the "federal prosecutors" and the Judges of the United States Courts the power to fill in the amount. Sections 1503 and 1512, like sections 1621 and 1623 on perjury, are essentially investitures of legislative power in the judges of the Courts of the United States, letting the judges by their case rulings and judgment decrees expound the specific offenses and kinds of behavior that are "covered" by these laws. The grant of legislative power is like that of the British Parliament that asserted the right to legislative for the colonies "in all cases whatsoever." The due administration of justice" is its broadest sense nothing but governing a country the administration. A law giving the executive the power to prosecute for offense of corruptly influencing or endeavoring to influence or impede the due administration of justice, and giving the Courts the power to declare the specific meanings of the general expression is a law vesting the judiciary the power to make criminal laws, and worse even, ex post facto laws. These laws are plainly improper and in violation of the Constitution (Article I, Section 1 and Section 9; and the Tenth Amendment). A law forbidding the execution of any process is plainly proper, and Blackstone's enumeration of offences against public justice provides for such. Also, a law prohibiting subornation of perjury, as defined by Blackstone, is surely adequate to protect parties of a suit from false testimony.

As to influencing witnesses, the laws ought not to encourage a person to apply to the courts of justice for redress of alleged injury without being certain of the injury done to him, and therefore having the evidence to prove the point, and certain of the identity of those other persons who can give any needed parol evidence.

The section 1503 and 1512 of the present United States criminal code, correctly viewed, are additional enforcements of unconstitutional rules of evidence, giving the United States Courts discretion power to govern the country by the misuse of the judicial power vested in them by the Constitution.

Richard E. Webb

Studies of Nuclear Hazards and Constitutional Law
Present Address (30 September 2000):
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1. Later in his "grand jury" testimony of August 17,1 1998, Mr. Clinton testified that,

"When I was alone with Ms. Lewinsky on certain occasions in early 1996 and once in early 1997, I engaged in conduct that was wrong. These encounters did not consist of sexual intercourse. They did not constitute sexual relations as I understood that term to be defined at my January 17th, 1998 deposition. But they did involve inappropriate intimate contact."

2. The Starr Report, pages 298-299.

3. Strictly speaking, relevant evidence, by the Federal Rules of Evidence, is the only evidence that can be admissible evidence at trial. As this expression is defined in Rule 401 of the Federal Rules of Evidence, relevant evidence in the Courts of the United States under these federal rules need not be evidence which demonstrates, makes clear, or ascertains the truth of the very fact in issue.

4. * The Starr Report, p. 359, and Note 214 and 424 of the Referral Report.

5. * We can see now that Mr. Starr has erroneously used the word process in connection with the crime of obstruction of justice, which he has asserted was committed by Mr. Clinton when "endeavoring to influence M. Lewinsky, which Mr. Starr calls alternately, "to thwart the judicial process," as if there was something being executed, and Mr. Clinton obstructed the execution of it. Such are the tricks of words to give an impression of a proof of criminal wrong doing.

By the way, and as an aside, this Author has frequently heard of a "due process of law" case which every lawyer it seems tries to make in the environmental law field. Amendment 5 of the Constitution says, "No person shall ... be deprived of life, liberty, or property, without due process of law." The understanding of that part of the Fifth Amendment which lawyers seem generally to have or assert is that this "due process" right means that one cannot be deprived of his life, liberty or property unless the deprivation is carried out by law. But the expression due process of law is used in Blackstone's Commentaries on the Laws of England in chapter 24 of Book IV, on "Of Process upon an Indictment," and consistently so in chapter 19 of Book III, "Of Process" in civil proceedings. In Blackstone's Commentaries the expression "due process of law" means strictly that no person shall be deprived of his life, liberty or property without that person being brought to the Court to answer the charges against him: that an indictment, for instance, cannot be tried unless the accused personally appears! So, those lawyers who appear to champion the rights of person by asserting a theory of due process of law that means the Government can take your life, liberty and property, that is, deprive you of your life, liberty, and property, as long as the government acts according to a law, really have delivered over to the government our rights to life, liberty and property. For a law could be a statute giving discretionary power, for instances, in judges, or to covert operatives, to deprive you of your reputation, your property, your liberty, and even your life, without you being brought to any court to answer any charges against you, your work, or your person. Like practically all the "modern" interpretations of the Constitution, this Author finds that they are all wrong!

6. The District Court violated the Constitution of the United States in ruling that the matter of "other women" is "relevant" on the basis of unconstitutional Rule 26 of the Federal Rules of Civil Procedure, and the Supreme Court violated the Constitution in making those rules: For one thing, they have not legislative power to make rules of evidence.