Stuart P. Green, author of Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime, is the Louis B. Porterie Professor of Law at Louisiana State University. His book navigates the ambiguity of white-collar crimes by examining the underlying moral fabric and illuminating what conduct is worthy of punishment by criminal sanction. Below Green looks at the case of Lord John Brown.
Earlier this month, Lord John Browne, once hailed as the “Sun King of the oil industry,” resigned from his post as CEO of British Petroleum amid allegations that he had lied to a court about his sexual relationship with another man. The 58-year-old Browne, who is viewed as one of the most accomplished business executives of his generation, had brought an invasion-of-privacy suit seeking to enjoin the Mail on Sunday tabloid newspaper from publishing reports about his four-year relationship with 27-year-old Jeff Chevalier. Browne ultimately lost the suit in part because he falsely testified, under oath, that he had met his partner while jogging in a London park, when in fact he had met him through a male escort service. The British Attorney General, Lord Goldsmith, will soon have to decide whether to prosecute Browne for perjury.
In America, we’ve had more than our share of perjury cases to observe in recent years, involving such high profile figures as Bill Clinton, Scooter Libby (top aide to Vice President Dick Cheney), and John Poindexter (National Security Advisor to President Reagan). We’ve also had more than our share of disagreements about the wisdom of such prosecutions. Partisans of each of these figures have claimed that their prosecutions for perjury and other “cover-up” crimes (such as obstruction of justice and making false statements) have been unfair and unnecessary. Indeed, it often seems as if the way people feel about the merits of such cases turns more on their subjective feelings about the character of the person charged than with any objective facts about the person’s allegedly criminal conduct.
In my view, this is unfortunate. There are in fact impartial and objective factors that ought to be considered in determining whether to prosecute for perjury. In the spirit of offering some friendly (and unsolicited) advice to Lord Goldsmith, I would like to mention a few of the considerations that any prosecutor faced with such a case ought to consider.
First, the prosecutor ought to take into consideration the seriousness of the underlying conduct being covered up. He should ask whether the underlying conduct itself was criminal, whether it constituted a civil violation, or whether it was nothing more than embarrassing, but perfectly legal, conduct. For example, Scooter Libby was suspected of being part of a scheme to leak classified information about the identity of a CIA covert operative in a time of war, whereas Bill Clinton was suspected of having an extramarital affair with a White House intern. Presumably, the more harmful the underlying conduct being investigated, the stronger society’s interest in knowing about it, and the greater harm its cover-up is likely to cause.
Second, the prosecutor should consider the circumstances that gave rise to the witness’ alleged perjury. In the U.S., witnesses typically lie in an effort to shield themselves from government investigation. For example: Libby lied while being questioned by Special Prosecutor Patrick Fitzgerald; Poindexter lied to Congress about his involvement in the Iran-Contra Affair. In Britain, which has much more restrictive laws concerning defamation, perjury has occurred in a quite different procedural context: Both Jeffrey Archer, former Deputy Chairman of the Conservative party, and Jonathan Aitken, Cabinet official under John Major, perjured themselves in libel proceedings which they themselves had initiated against various media outlets.
Third, the prosecutor should consider the significance of the cover-up itself. He should, in particular, examine the extent to which judicial proceedings were actually hindered by the witness’ obstructive conduct. For example, there seems little doubt that Libby’s lies made it harder for the grand jury and the special prosecutor to pursue the goal of their investigations.
So how would these factors play out in the perjury case against Lord Browne? What factors should Attorney General Goldsmith consider in deciding whether to prosecute?
With respect to the first factor (seriousness of the underlying conduct), to the extent that Browne lied about nothing more than his private sex life, prosecution for perjury seems unwarranted: the conduct being covered up was of absolutely no legitimate interest to the public. (On the other hand, if it turns out that he also lied about other matters, such as the alleged misuse of BP assets and evasion of taxes, the case would look quite different.) As for the second factor (the circumstances that gave rise to the witness’ alleged perjury), it seems significant that Browne (like Archer and Aitken) initiated these proceedings himself. Other things being equal, his lies therefore seem more culpable than if he (like Libby and Poindexter) had been seeking to preserve himself in the wake of a government investigation.
As to the significance of the cover-up itself: here, there is a strong argument against prosecution. When asked whether he had had a sexual relationship with a 27-year old former male prostitute, Browne did what any 58-year old titan of industry would do: he lied. It seems unlikely that his perjury significantly hindered anything. As it happened, there was other, compelling evidence of Browne’s relationship with Chevalier, and it did not take long for the truth to come out. His perjury, therefore, did little to harm the judicial process.
Based on the public record that now exists, factors 1 and 3 thus seem to recommend against prosecution, while factor 2 points in favor of it. Although the decision is more difficult than it may at first appear, my advice to Lord Goldsmith would be to exercise his discretion and refrain from prosecuting Browne for perjury.