In the course of its news article on President Obama's tepid quasi-apology for his "if you like your plan, you can keep it" falsehood, the New York Times reports this comment:
"We know that lying to Congress is a crime, but unfortunately, lying to the American people is not," Senator John Cornyn, Republican of Texas, said Wednesday during a congressional hearing on Capitol Hill.
The Times does not point out that Mr. Obama actually made the "if you like your plan, you can keep it" claim at least twice in remarks directed at Congress.
On September 9, 2009, in "Remarks by the President to a Joint Session of Congress on Health Care," Mr. Obama said:
First, if you are among the hundreds of millions of Americans who already have health insurance through your job, or Medicare, or Medicaid, or the VA, nothing in this plan will require you or your employer to change the coverage or the doctor you have. (Applause.) Let me repeat this: Nothing in our plan requires you to change what you have.
Second, on January 27, 2010, in his State of the Union Address, Mr. Obama said: "Our approach would preserve the right of Americans who have insurance to keep their doctor and their plan."
U.S. Law, Title 18 Section 1001, provides that "whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation" is subject to a fine or up to five years in prison.
One question was whether Mr. Obama's deception was knowing and willful. Someone considering prosecuting him would have to look for evidence that he was warned that his claim was not true — either privately by one of his own staff members, or perhaps even publicly, by widely circulated newspaper op-eds and editorials that Mr. Obama would have seen that asserted that his claim was false.
The statute carries a provision that narrows its applicability in connection with matters before Congress. That provision says that the law applies only to "administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or 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."
That provision might get Mr. Obama off the hook when it comes to his address to the Joint Session. But the State of the Union address is precisely a document that is required by law to be submitted to the Congress — required by the U.S. Constitution itself, in article II, section 3.
Now, there are all sorts of arguments to the effect that even if Mr. Obama did knowingly make a false statement to Congress in the State of the Union address, he should not be prosecuted. There's the unitary executive argument that the prosecutors who would be investigating the president work for the executive branch, so how can they prosecute their boss. There is the executive privilege argument that the investigating any prosecutor would have to do to find out if the president knew he wasn't telling the truth would pierce the confidentiality needed to effectively govern. There's the sapping-the-boldness-of-the-president argument made by Justice Scalia in his dissent in Morrison v. Olson, that such a prosecution would distract the president from his job. There's the argument that policy differences shouldn't be criminalized.
I'm ordinarily sympathetic to many of these arguments. Nevertheless, all sorts of dedicated public servants and individuals, from members of the Nixon administration through Oliver North and Elliott Abrams to Scooter Libby and Martha Stewart and even Bill Clinton, have been dragged through all sorts of misery for similar alleged offenses that had far smaller policy consequences than did Mr. Obama's falsehood, which led to the enactment of the Patient Protection and Affordable Care Act that remains the law of the land. So were some ambitious or enterprising congressman on the House Judiciary Committee or U.S. attorney to open an investigation, one never knows where it might lead. One almost hopes a U.S. attorney somewhere gets going on it, just for the chance to ask Senator Schumer for his opinion if Attorney General Holder gets wind of the matter and tries to shut it down.