As the scandal grows involving Texas State Sen. Wendy Davis’ false statements, a new angle is receiving increasing attention. The Democratic candidate for Texas governor made several false statements under oath in federal court. Do they actually rise to the level of perjury, which is a federal felony? Will the Obama-Holder Justice Department investigate this darling of abortion-rights supporters and the Democratic Party base?
In the past 24 hours, Breitbart News has reported that in an interview with Davis, the Dallas Morning News–which seems sympathetic and even supportive of Davis–noted that several of her statements have proven to be untrue. Our follow-up report showed at least one of these was actually given in sworn testimony in federal court.
The court transcript records that “I got divorced by the time I was 19 years old,” (p. 6) and also that “I had a full scholarship that was in part need based,” (p. 9). The second statement is at least half-false, and the first statement is undeniably false. Both statements were given under oath, raising the question whether Davis committed perjury in federal court, which is a felony.
Under 18 U.S.C. § 1621, a person commits perjury if:
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.
The case was Texas v. Holder, filed in 2012. Under Section 5 of the Voting Rights Act, until recently the State of Texas–like many Southern states–could not change their voting laws or legislative district lines without advance permission from the U.S. Justice Department or a three-judge federal court in Washington, D.C. (In 2013, the Supreme Court struck down as unconstitutional the part of the statute that made Texas subject to this preclearance system.)
Davis filed a special motion to intervene in the lawsuit, along with four racial-minority Texans. In her motion to join the lawsuit, Davis’ lawyers argue that she was needed to “ensure that the State of Texas does not implement redistricting plans that are the result of a process in which the interests of minority voters were not properly represented and protected.” They also complain that the redistricting plan “leaves seven of the eight districts in the region largely under the control of Anglo voters, despite a decreased Anglo population.”
Of the five intervenors, the other four are “minority citizens and voters.” Davis had to explain how, although she is a white woman, she has special insight to represent minorities. Davis’ lawyers argued she is essential in part because she “will bring a unique perspective with respect to the experience of minority voters,” and because she has insight into “deficiencies in the legislative process” about redistricting.
Part of Davis’ testimony involved her giving a very detailed biographical account of herself. It included (p. 10):
A: … I attended and graduated from Harvard Law School.
Q: Did you graduate with honors?
Q: And you’re an attorney?
A: Yes. Not a paralegal. Not a pediatrician.
Davis then goes on to say with pride how she served as a law clerk to a federal district judge in Texas, then worked at a large law firm doing litigation.
“I also had gained a name for myself, for lack of a better way of saying it, as a person who was really standing up for our minority community.” She later noted that she worked with the minority community “so that concentrations of poverty would not be a generational experience.” She said fierce opposition was directed against her, but “I stood through that for what I knew was right and ultimately the relocation occurred.”
Davis later makes specific points about working hard for public education and for payday loan reforms, as well as pushing for in-state tuition for illegal alien children. She later testified, “I know in my heart” that minority votes put her into office, implying that she is the right person to represent them.
All this is important for several reasons. First, on the question of perjury, a person must “willfully” state something she “does not believe to be true,” and the false statement must be “material” to the case–meaning relevant to the lawsuit.
These statements were given in open court under direct examination, meaning it is Davis’s lawyer asking the questions. That is important because it means these questions were likely rehearsed and deliberate; she knew what to expect and had thought about precisely how to respond, and was not surprised or caught off-guard. Also–as she emphasized to the court–this is no ordinary woman; she has a law degree from Harvard, clerked for a federal judge, and was a litigator with a big-name law firm. She understands better than most people the need to be precisely accurate when she testified under oath and to be careful with her facts.
It would be surprising if someone with Davis’ education and legal experience would have accidentally forgotten her age when she answered a question she knew in advance was coming. However, it is unclear whether age 19 versus 21 is a “material” fact for purposing of a redistricting lawsuit, even when Davis was making the case that she understands better than many other white people how to represent disadvantaged minorities. A willful falsehood that is not material is a lie, but it is not a crime.
Davis had a clear political motive for making these false statements. She is portraying herself as having been a single teenage mother, possibly trying to connect with the urban-minority community.
Also, the Dallas Morning News story says it was her second husband–a lawyer in his mid-30s–who paid for her last two years of college and also for Harvard Law School, and raised her children while she was in law school in Boston. If so, then her claims about a full scholarship that was based on financial need could be partially false, perhaps only referring to her first two years of college. Again, like her work reforming payday loans, this is a narrative with which low-income constituents could relate.
Most people will give Davis the benefit of the doubt on the financial-aid statements. But her claim in court to be a single teenage mother is clearly false.
Perjury is a particularly dicey issue for lawyers. You can be disbarred for felonies, or for even minor “crimes of moral turpitude”–issues such as fraud that show you to be a dishonest person, lacking integrity or moral character. Perjury is one of the most serious such crimes for a lawyer, since it directly undercuts the legal process’ overriding duty to discover the truth so that justice can be done in court.
Whether she committed perjury or not, making false statements under oath–even accidentally or on an irrelevant matter–is a serious issue for lawyers. The Texas Supreme Court could suspend her law license or even disbar her for such statements, though a lesser punishment like a letter of reprimand would be more typical when there is no criminal conviction involved.
Since these false statements were given in U.S. District Court in D.C., only the U.S. attorney for Washington, D.C., can launch a criminal investigation to see if this matter should be taken to a grand jury for an indictment for perjury. But as part of the Justice Department, that prosecutor answers to Attorney General Eric Holder and was appointed by President Barack Obama. Davis has become a national figure for the abortion-rights movement and is the Democrats’ favorite candidate for Texas governor. Will the Obama-Holder Justice Department investigate the matter to determine if criminal charges are warranted?
It is unlikely that there will be an investigation, and it is not clear that these false statements in court rise to the level of felony perjury. But regardless of the legal dimension, Texas voters will make their own judgment if Wendy Davis is the right person to lead the Lone Star State as its governor.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.