"James Clapper Is Still Lying": That would be a more honest headline for yesterday's big Washington Post article about the director of national intelligence's letter to the U.S. Senate.

Clapper, you may recall, unequivocally said "no, sir" in response to Sen. Ron Wyden, D-Ore., asking him: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Clapper's response was shown to be a lie by Snowden's disclosures, as well as by reports from the Guardian, the Washington Post, the Associated Press and Bloomberg News (among others). This is particularly significant, considering lying before Congress prevents the legislative branch from performing oversight and is therefore a felony.

Advertisement:

Upon Snowden's disclosures, Clapper initially explained his lie by insisting that his answer was carefully and deliberately calculated to be the "least untruthful" response to a question about classified information. Left unmentioned was the fact that he could have simply given the same truthful answer that Alberto Gonzales gave the committee in 2006.

Now, though, Clapper is wholly changing his story, insisting that his answer wasn't a deliberate, carefully calibrated "least most untruthful" response; it was instead just a spur-of-the-moment accident based on an innocent misunderstanding. Indeed, as the Post reports, "Clapper sent a letter to the Senate Intelligence Committee on June 21 saying that he had misunderstood the question he had been asked" and adding that "he thought Wyden was referring to NSA surveillance of e-mail traffic involving overseas targets, not the separate program in which the agency is authorized to collect records of Americans’ phone calls." In his letter, Clapper says, “My response was clearly erroneous — for which I apologize," and added that “mistakes will happen, and when I make one, I correct it.”

So Clapper first says it was a calculated move, and now he's saying it was just an innocuous misunderstanding and an inadvertent error. With that, the public -- and the Obama administration prosecutors who aggressively pursue perjurers -- are all supposed to now breathe a sigh of relief and chalk it all up to a forgivable screw-up. It's all just an innocent mistake, right?

Advertisement:

Wrong, because in this crime, as Clapper's changing story suggests, there remains a smoking gun.

Notice this statement from Sen. Wyden about Snowden's disclosures -- a statement, mind you, that the Post didn't reference in its story yesterday (emphasis added):

“One of the most important responsibilities a Senator has is oversight of the intelligence community. This job cannot be done responsibly if Senators aren’t getting straight answers to direct questions. When NSA Director Alexander failed to clarify previous public statements about domestic surveillance, it was necessary to put the question to the Director of National Intelligence. So that he would be prepared to answer, I sent the question to Director Clapper’s office a day in advance. After the hearing was over my staff and I gave his office a chance to amend his answer.

So Clapper had a full day's notice of the specific -- and impossible to misunderstand -- question Wyden asked, and is nonetheless now claiming that in the heat of the moment he spontaneously misunderstood the question. In other words, he's not coming clean, as the Post story seems to imply. On the contrary, he's lying about his deliberate lie, which should only make a perjury prosecution that much easier, for it shows intent.

Advertisement:

The importance of such a perjury prosecution, of course, should not be lost on our constitutional law professor-turned-president.

Out of all people, he has to understand that equal protection under the law means treating Clapper (and Alexander, who also lied to Congress) exactly the same way his administration treated pitcher Roger Clemens. Otherwise, the message from the government would be that lying to Congress about baseball is more of a felony than lying to Congress about Americans' Fourth Amendment rights. Such a message would declare that when it comes to brazen law-breaking, as long as you are personally connected to the president, you get protection rather than the prosecution you deserve.