Perspective: From Clinton’s emails to Trump’s documents, why ‘process crimes’ matter

Last month, Texas judge Roy Ferguson (of “I’m not a cat” fame) told a story on Twitter that I’ll be thinking about for a while.

A couple was divorcing, and the husband was out to take everything he could. He showed up in court with a lawyer and a list of properties that he and his wife owned — a short list, just the couple’s home and his own unprofitable shipping business, with $200,000 in gross annual receipts and “maybe $25,000” in a bank account.

He sat in the witness box, took an oath to tell the truth and answered his lawyer’s questions. Yes, I own those properties. Yes, those are definitely all the properties I own. No, my business isn’t much to brag about, but it’s mine, and I’d like to keep it.

The wife had no lawyer, not much English and no interpreter (the court offered, but she declined). She stood up to cross-examine her husband and asked him to confirm: These are really all the properties we own? There’s nothing else, you swear under oath?

I won’t steal His Honor’s thunder; you can read about the husband’s comeuppance and the wife’s delicious vindication in Ferguson’s Twitter thread.

But the short version is that the husband took an oath and then lied about everything. He lied about their 13 commercial properties, he lied about his million-dollar business and its million dollars in the bank, and he’d even been lying about his marital status — he had another wife and family and a big house on a huge farm in Mexico.

He got caught when his wife cross-examined him with a stack of documents, and he walked away with a lot less than if he’d just told the truth. And that’s normal. Lying in court doesn’t often pay off.

But still, in a sense, he got away with it. On the judge’s telling, the husband committed a felony, perjuring himself to get money that rightfully belonged to his wife — in effect, he tried to trick the judge into robbing his wife for him.

And yet there was never a serious threat that he’d be jailed or even prosecuted. As the judge himself wrote later in the Twitter thread, “Most prosecutors are busy and not interested in pursuing lies during a divorce trial.”

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Lies during a divorce trial fall into the category sometimes called “process crimes.” If you’ve followed many politically charged investigations, then you have likely heard the term.

The category includes false statements to investigators, as were alleged in the Mike Flynn and Andrew Gillum cases; it includes obstruction of justice like in the latest Donald Trump indictment or the indictment Republicans wish they could bring for destruction of evidence during Hillary Clinton’s email scandal; and it includes perjury, which Scooter Libby was convicted of and Bill Clinton impeached for.

The term “process crime” is often used to make crimes seem less serious, and not without reason. There’s a story that both sides tell sometimes, a story in which their side’s guy was accused of something heinous and investigators turned his life upside down, and it eventually turned out the accusation was false all along — but, while the guy was under the microscope, he destroyed some document or told a little lie about something that was really none of the investigators’ business, and he ends up convicted of a process crime. He goes to jail even though he was innocent when accused and would have stayed innocent but for an investigation that maybe shouldn’t have happened in the first place.

I won’t deny this is a problem. The saying “Show me the man, I’ll find you the crime” is usually attributed to the Soviet secret police, and it’s not at all comforting to consider how true it seems in the U.S. sometimes.

Still, as a lawyer in the trenches, I think belittling or ignoring process crimes is bad for everyone.

G.K. Chesterton once wrote that suicide is more wicked than murder: “The man who kills a man, kills a man. The man who kills himself, kills all men; as far as he is concerned he wipes out the world.”

Chesterton was a master of rhetoric, but here it ran away with him. Whatever the merits of his theological point, I hope that in calmer moments he felt more compassion for a suicide victim than for a murderer.

With that caveat, let me repurpose Chesterton’s idea. The man who commits a crime, commits a crime. But the man who commits a process crime commits all crimes. The robber or kidnapper violates one person’s rights, but the perjurer attacks everyone’s right — he obstructs and damages the legal institutions we depend on to protect our rights, without which our rights would mean nothing.

If that’s too high-flown and symbolic for you, then let’s speak practically. Imagine what would have happened to the wife in Judge Ferguson’s court if she hadn’t been quite so brave and assertive, or quite so financially literate, or if the husband had hidden the documents that proved he was lying. Short answer: she’d have been the victim of perjury, and of robbery-by-judge.

The wife’s experience is far from unique. Have you ever wondered why it’s so expensive to have a lawyer represent you in court? Here’s one part of the answer: Hardly a case is filed in which the lawyers don’t have to ask, “What if he lies?” and “How will we catch him?”, and answering those questions takes a lot of work and costs a lot of money. If you’re poor and the other party in your case starts lying, well, I hope you can find pro bono counsel, or that you’re as sharp as the wife in this story.

So those are the costs of process crimes, and especially perjury. They’re a tax on everyone who uses the justice system, which ultimately includes all of us; they help make justice a luxury good, potentially unobtainable for those who need it most; and, when they’re not caught, they can lead the courts to unjust judgments and weaken people’s faith in the judiciary.

And if you’re still angry that process crimes seem to be prosecuted only when it’s your political heroes being accused of them, please remember: these crimes matter, and the remedy for the injustice that justly galls you is to prosecute them more often — not less.

Alan Hurst is an attorney in Salt Lake City. His opinions are his own and do not represent the views of his firm or his clients.