None Dare Call it Perjury

I admit crim pro is not my strong suit, but why isn’t the conduct described in Islamic Shura Council v. FBI (C.D. Cal. Apr. 27) simple perjury by a government official?

The Government’s in camera submission revealed that the Government initially misled the Court in two material respects. First, the Government’s representations regarding its use of “outside the scope” were inaccurate. The Government initially represented to the Court that the Government provided all information that “include[d] any reference to plaintiffs in any document in any file,” and any information withheld as “outside the scope” of Plaintiffs’ request was “non-responsive.” (Opp’n to Pl.’s Mot. Summ. J. at 3, 11.) Mr. Hardy’s second declaration stated that, in truth, documents “that would otherwise be considered to be responsive to plaintiffs’ request” were excluded from production or redacted as “outside the scope.” (Second Hardy Decl. ¶ 5.) Second, the Government’s representations regarding the number of responsive documents were false. The Government previously represented that it had identified only a limited number of documents responsive to Plaintiffs’ FOIA request. (First Hardy Decl. ¶¶ 19, 31–43, 45–46.) Mr. Hardy’s second declaration acknowledged that the Government had identified a large number of additional responsive documents, but that the Government did not disclose the existence of these other documents. (Second Hardy Decl. ¶ 13.)

The first declaration was, if I am reading it right, under oath. And there were lawyers involved in many stages of this too.

(Case spotted via Volokh. Neither he nor the judge call it perjury.)