Bob commits crime X, which has a statute of limitations of five years. Twenty years later — fifteen years after the statute of limitations has passed — a police officer finds out about the details of Bob's crime.
The officer realizes that Bob cannot be punished for the crime because the statute of limitations has long passed. The officer decides to visit Bob at his home anyway to ask Bob about the crime twenty years earlier. The officer tells Bob what he knows about what Bob did and asks Bob if it is true that he did it. Bob lies and says he didn't do it. Bob is then charged with intentionally lying to a police officer, which in our hypothetical jurisdiction is a felony. The government's proof: twenty earlier, Bob did in fact commit crime X.
Question: Is it constitutional for Bob to be charged and punished for lying to the officer about the crime he committed 20 years earlier?
Well, the answer seems to depend on whether or not you're a lawyer, or perhaps a Special Prosecutor.
Scooter Libby has just had his sentence commuted, an act which is going to have no end of blow-back for the Bush administration. But what did Libby do?
He didn't leak the identity of Valerie Plame, and leaking it wasn't a crime when the information got out, anyway. He was charged with, and convicted of, obstruction of justice when he told investigators something that turned out not to be true.
In Bob's case, he at least did commit a crime. In Libby's case, there was no underlying crime.
In this comment), I can't resist following up on the parallel with the impeachment of President Clinton. He was not impeached for sex – he was impeached for lying to investigators (obstruction of justice) and perjury (lying under oath – about anything).
In the run-up to impeachment, [fellow lasfs member] Eugene Volokh commented that in his opinion, Clinton's offenses were "impeachable, but not impeachment-worthy". Those who disagreed with him contended that his offenses were still serious offenses, no matter how trivial the underlying reasons he chose to commit them.
It's amusing to see people, whom I'd bet money were loud opponents of Clinton's impeachment, making the same case the House made against Clinton.