Cite as: 510 U. S. 317 (1994)
Scalia, J., concurring in judgment
"is guilty of perjury and shall . . . be fined not more than $2,000 or imprisoned not more than five years, or both. . . ."
United States Attorneys doubtless cannot prosecute perjury indictments for all the lies told in the Nation's federal proceedings—not even, perhaps, for all the lies so cleanly nailed as was the one here. Not only, however, did the Board not refer the matter for prosecution, it did not impose, indeed did not even explicitly consider imposing, another sanction available to it (and not generally available to federal judges): denying discretionary relief because of the intentional subversion of the Board's processes.
While the Court is correct that we have no power to compel the Board to apply such a sanction, nor even, perhaps, to require that the Board's opinion explicitly consider it, neither was the Board's action in this case as eminently reasonable as the Court makes it out to be. Nor does it deserve the characterization of being "well within [the Board's] broad discretion," ante, at 325 (emphasis added). In my estimation, it is at the very precipice of the tolerable, particularly as concerns the Board's failure even to consider and discuss the desirability of limiting its discretionary relief.
Denying reinstatement would not, as the Court contends, involve the "unfairness of sanctioning Manso while indirectly rewarding [ABF] witnesses' lack of candor." Ibid. First of all, no "indirect reward" comes to ABF, which receives nothing from the Board. There is a world of difference between the mere inaction of failing to punish ABF for lying (which is the "indirect reward" that the Court fears) and the beneficence of conferring a nonmandated award upon Manso despite his lying (which is the much greater evil that the Court embraces). The principle that a perjurer should not be rewarded with a judgment—even a judgment otherwise deserved—where there is discretion to deny it, has a long and sensible tradition in the common law. The "unclean
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