James B. Stewart - Tangled Webs: How False Statements Are Undermining America: From Martha Stewart to Bernie Madoff

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Table of Contents

ALSO BY JAMES B . STEWART

Disney War:
The Battle for the Magic Kingdom

Heart of a Soldier:
A Story of Love, Heroism, and September 11 th

Blind Eye:
The Terrifying Story of a Doctor Who Got Away With Murder

Follow the Story:
How to Write Successful Nonfiction

Blood Sport:
The President and His Adversaries

Den of Thieves

The Prosecutors:
Inside the Offices of the Governments Most Powerful Lawyers

The Partners:
Inside Americas Most Powerful Law Firms

THE PENGUIN PRESS

Published by the Penguin Group

Penguin Group (USA) Inc., 375 Hudson Street, New York, New York 10014, U.S.A. Penguin Group (Canada), 90 Eglinton Avenue East, Suite 700, Toronto, Ontario, Canada M4P 2Y3 (a division of Pearson Penguin Canada Inc.) Penguin Books Ltd, 80 Strand, London WC2R 0RL, England Penguin Ireland, 25 St Stephens Green, Dublin 2, Ireland (a division of Penguin Books Ltd) Penguin Books Australia Ltd, 250 Camberwell Road, Camberwell, Victoria 3124, Australia (a division of Pearson Australia Group Pty Ltd) Penguin Books India Pvt Ltd, 11 Community Centre, Panchsheel Park, New Delhi110 017, India Penguin Group (NZ), 67 Apollo Drive, Rosedale, North Shore 0632, New Zealand (a division of Pearson New Zealand Ltd) Penguin Books (South Africa) (Pty) Ltd, 24 Sturdee Avenue, Rosebank, Johannesburg 2196, South Africa

Penguin Books Ltd, Registered Offices: 80 Strand, London WC2R 0RL, England

First published in 2011 by The Penguin Press, a member of Penguin Group (USA) Inc.

Copyright James B. Stewart, 2011

All rights reserved

Library of Congress Cataloging-in-Publication Data

Stewart, James B.
Tangled webs : how false statements are undermining America: from Martha Stewart
to Bernie Madoff / James B. Stewart.
p. cm.
Includes bibliographical references and index.

eISBN : 978-1-101-47651-2

1. PerjuryUnited States. 2. False testimonyUnited States.

3. Truthfulness and falsehoodUnited States. I. Title.

HV6326.S

364.134dc22

Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording, or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.

The scanning, uploading, and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions and do not participate in or encourage electronic piracy of copyrightable materials. Your support of the authors rights is appreciated.

http://us.penguingroup.com

To all who seek the truth

Introduction

Perjurii poena divina, exitium; humana, dedecus
(The crime of perjury is punished by heaven with perdition, and by man with disgrace.)

CICERO, DERIVED FROM THE TWELVE TABLES
OF ROMAN LAW, CIRCA 450 BC

Oh! What a tangled web we weave
When first we practice to deceive!

SIR WALTER SCOTT, MARMION (1808)

W e know how many murders are committed each year1,318,398 in 2009. We know the precise numbers for reported instances of rape, robbery, aggravated assault, burglary, larceny, and vehicle theft. No one keeps statistics for perjury and false statementslies told under oath or to investigative and other agencies of the U.S. governmenteven though they are felonies punishable by up to five years in prison. There is simply too much of it, and too little is prosecuted to generate any meaningful statistics.

Although lying seems to be an inherent part of human nature, the narrow but serious class of lies that undermines the judicial process on which government depends has been a crime as old as civilization itself. Originally prosecuted in England by ecclesiastical courts, by the sixteenth century perjury was firmly embedded as a crime in the English common law. The offender was typically punished by cutting out his tongue, or making him stand with both ears nailed to the pillory. False testimony that resulted in the execution of an innocent person was itself punishable by death. Exile, imprisonment, fines, and perpetual infamy were meted out as the centuries passed.

Perjury was a crime in the American colonies and has been a crime in the United States since independence. Today perjury and false statements are federal offenses under U.S. criminal code Title 18, and perjury is also outlawed by statute in all fifty states. The obligation to appear as a witness if summoned and to provide truthful testimony has been inculcated in generations of Americans through civics and history classes. I swear to tell the truth, the whole truth, and nothing but the truth is a phrase nearly every American knows by heart.

Yet lying under oath is a subjective crime. It requires the person telling the lie to know that the statement is false and to intend to lie. The subject of the lie must be material, of some importance, and not a trivial irrelevancy. Guilt or innocence turns not on accuracy, but on state of mind. For that reason, it is an extremely difficult crime to detect, prosecute, and prove.

Mounting evidence suggests that the broad public commitment to telling the truth under oath has been breaking down, eroding over recent decades, a trend that has been accelerating in recent years. Because there are no statistics, its impossible to know for certain how much lying afflicts the judicial process, and whether its worse now than in previous decades. Street criminals have always lied when confronted by law enforcement. But prosecutors have told me repeatedly that a surge of concerted, deliberate lying by a different class of criminalsophisticated, educated, affluent, and represented in many cases by the best lawyersthreatens to swamp the legal system and undermine the prosecution of white-collar crime. Perjury is committed all too often at the highest levels of business, media, politics, sports, cultureeven the legal profession itselfby people celebrated for their achievements, followed avidly by the media, and held up as role models.

Its nearing a crisis, James Comey, the former deputy attorney general and U.S. Attorney who prosecuted Martha Stewart, told me. People think the government is omnipotent. The truth is, this is an honor system. We count on the fact that witnesses will testify, produce documents and other evidence, and tell the truth. If not, the whole system is reduced to nothing but perjury and obstruction prosecutions.

I have written for many years about business and politics, and as the scandals of the last decade mountedEnron, WorldCom, Adelphia, Tyco, culminating in the shocking Bernie Madoff Ponzi schemeit occurred to me that they shared a common thread: lying. Sometimes it wasnt labeled perjury per se, but the essence of fraud is false statements, whether theyre accounting statements, SEC filings, or briefings to Wall Street analysts and investors. So many false statements were made in financial statements by business executives that the Sarbanes-Oxley reforms passed by Congress in 2002 require that chief executives and chief financial officers swear to the accuracy of their financial reports, and if they prove to be false, the executives face criminal prosecution. That such a law would even be necessary would surely have shocked earlier generations of American business leaders.

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