Make no mistake, the White House knows very well what it is doing, and their "Extremely Generous Offer" (EGO - ha, "ego" it fits) is tailored precisely to guarantee that Rove and Miers can lie with impunity. Yes "Lying to Congress" is a crime, but let us not underestimate our foes. They have lawyers. They know damn well what the statute says. Do you?
First, let's recap the features of the EGO: (see it here)
- No oaths
- No transcripts
- Limited members of the committees
- In private
Ok, so most immediately fixated on the Oath provision because that would neatly avoid prosecution under perjury statutes. True enough, so we all cleverly reminded ourselves: But lying to congress is still illegal! Yeah, but Rove still will not be indictable for it, and the real reason does have to do with the lack of transcripts and oaths, but not for the obvious reasons. Witness testimony nailed Libby. Russert's word was credible enough to help find Libby guilty. Transcripts are not a prerequisite for prosecution for perjury. If several members of congress testified Rove told them X, a Jury will believe he was lying. So why would his lies not constitute a crime? Here we go (legal hats on please).
We need to know what actual law makes "lying to congress" a crime. The relevant statute is U.S. Code : Title 18 : Section 1001, in particular section (c), which says:
(c) With respect to any matter within the jurisdiction of the
legislative branch, subsection (a) shall apply only to -
(1) administrative matters, (...blah blah...)
(2) any investigation or review, conducted pursuant to the
authority of any committee, subcommittee, commission or office of
the Congress, consistent with applicable rules of the House or
Senate.
The bolded part in section (c)(2) is the key here. The lies have to be told in a formal setting consistent with the rules. Which rules? The internal rules for the House and Senate committees Judiciary. Otherwise this law just doesn't apply. Why? Well, the DoJ provides some reasonable justification:
In subsection (c) of amended § 1001, Congress created a "legislative function exception." Under the new provision, false statements within the jurisdiction of the legislative branch are subject to prosecution only if they relate to administrative matters or congressional investigations conducted consistent with the applicable congressional rules. Amended § 1001 will thus reach those documents that have most often been the subject of congressional false statement prosecutions, such as vouchers, payroll documents, and Ethics in Government Act (EIGA) financial disclosure forms. The exception was intended to protect, among other things, the free flow of constituent submissions to Congress.
So, the law was crafted to be very reasonable. They didn't want to scare people from writing a letter to their congressperson, for fear of being prosecuted for lying if anything in the letter turned to be false. Also, picture some asshole like Inhofe prosecuting constituents for "lying" about global warming. So I'll say this law was written wisely on the whole.
Ok, so lies to congress are only crimes when told to committees, so we'd better check out the rules of the two committees in question.
The Senate rules:
III. QUORUMS
1. Six Members of the Committee, actually present, shall constitute a quorum for the purpose of discussing business. Eight Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business. (...)
2. For the purpose of taking sworn testimony, a quorum of the Committee and each Subcommittee thereof, now or hereafter appointed, shall consist of one Senator.
So this is interesting. One Senator can be a quorum for taking testimony. Great right? Except the rules specify sworn testimony. No oaths means this provision cannot constitute a quorum for the committee. So we'll need at least 6 or possibly 8 members of the committee present at this "meeting" with Rove and Miers to constitute a "quorum." So in item 3 in Fielding's demands, would the White House allow 6 members of the Senate committee to attend? I bet not. Absent a quorum, this is just a meeting between some US Senators and Rove, and lies told there are not subject to USC(18):1001 as shown above: The meeting would not constitute a meeting of a Senate Committee for the purposes of the law.
Ok, next the House Rules:
Rule III: Hearings
...
(c) For purposes of taking testimony and receiving evidence
before the Committee or any Subcommittee, a quorum shall
be constituted by the presence of two Members.
Ok, so far so good! Only 2 members are needed, no oaths necessary, and the White House's letter indicates a "limited number" - well 2 is pretty limited. Not like they need 6 or 8. Great, start the Prosecutions! But, wait:
(e) The transcripts of those hearings conducted by the Committee
which are decided to be printed shall be published
in verbatim form, (...)
See, there's got to be a transcript for a hearing of the House Judiciary committee. That rule presumes a transcript is taken, and only discusses the committee's latitude and procedure for whether same is published and released to outsiders.
So that's their game. That's why they can't possibly compromise on items 1 and 2. Item 3 is just there because they don't want the public to see Rove and Miers lying their asses off, but not for any substantive legal reasons (unless they fear a recording of it could constitute a "transcript" for the purposes of the House committee...not sure if that would stack up in court).
Let's Recap:
- Yes, lying to congress is a crime, but only when you do it to a committee conducting hearings under their own rules
- The EGO would not meet the criteria for hearings for either committee by their own rules
- Rove and Miers could now claim they believed the law did not preclude them lying, and either escape prosecution outright (highly likely) or have the charge dismissed if even laid.
The EGO was constructed specifically to ensure that no prosecution for lying to congress could take place.