At six in the morning, a man is startled awake by an insistent pounding on his front door. He opens it to find armed government agents. One group of them begins to ransack the man’s home. Two others take him outside and put him into the back seat of a nondescript government vehicle. One of the armed government agents sits on either side of him, trapping him. As he sits, blinking and confused in his pajamas, they begin to bark questions at him. Was he at a particular meeting, on a particular date, with a political figure who is under suspicion of wrongdoing? The man, confused and afraid and thoroughly intimidated, makes a bad choice — he answers, and he lies. He says he was not at the meeting. The armed government agents smile. They already have witnesses placing the man at the meeting. They already have a recording of the man at the meeting. His lie does not deter, mislead, or even mildly inconvenience them. But now they have him, whether or not he’s done anything wrong before — now he’s lied to the government, a serious crime.
That scenario is not from some totalitarian foreign country or some fictional dystopia. It’s from America, here and now. It happened just like that to one of my clients, interrogated at dawn by the FBI. It represents the vast power of law enforcement — especially federal law enforcement — to turn investigations of crimes into schemes to produce new crimes.
Federal criminal investigative power is in the news as President Trump and his associates face an investigation by Special Counsel Robert Mueller. Reports — and some ill-considered tweets by the president — suggest that Mueller’s focus may be not just Russian shenanigans but obstruction of the investigation into the same. Trump supporters are enraged; some Trump detractors are delighted. Nobody should be comfortable, unless they are at ease with vast and flexible law-enforcement power over citizens, especially controversial ones. Our system gives federal prosecutors and investigators — from locals across the country to the rare and elite like Mueller — extraordinary power to turn Americans’ lives upside down and prosecute not just prior crimes but any very common and human missteps their frightened targets make in reaction to the investigation.
Commentators are expressing shock — and in many cases pleasure — that President Trump and his associates could face criminal exposure not for original wrongdoing but for their reaction to accusations of wrongdoing. Nobody who has paid attention to American criminal justice for the last generation should be shocked. It is routine — mundane, even — for federal investigators to convict people not for the subject of the investigation but for how they reacted to it.
The versatility of the federal criminal law can be a useful tool against genuine criminals. Consider the famous example of gangster Al Capone, jailed for tax evasion when murder and extortion charges wouldn’t stick. But Capone was a career criminal, and he was evading taxes before anyone pursued him. Modern federal investigators and prosecutors have learned the trick of startling their quarry into foolish actions, making their prior criminality irrelevant.
The examples are legion. Martha Stewart was convicted for how she reacted to an insider trading investigation, not for insider trading. Scooter Libby was convicted of lying to a grand jury investigating leaks, not for leaking. Retired Marine Corps general James E. Cartwright was convicted of lying to the FBI during their leak investigation, not of leaking. Clinton-era housing secretary Henry Cisneros was convicted of lying to the FBI about money he gave a girlfriend, not for the wide-ranging subject of the independent-counsel investigation into him. New York state senator Thomas Libous was convicted not of the corruption he was accused of but for lying to the FBI in the course of the investigation. House speaker Dennis Hastert was investigated for misuse of public funds, and was proved to have engaged in horrendous child abuse, but was ultimately convicted of lying to the FBI about the money he used to pay his victim and of structuring those payments in a way designed to evade detection. Rapper Lil’ Kim wasn’t convicted for participating in a gunfight; she was convicted for lying to a grand jury about one.
Investigators and prosecutors will tell you that this is a good thing — that their power to convict targets for lying or obstruction helps catch criminals who would otherwise go free because of problems of proof. But people who hold vast power rarely think they ought not. In fact, the most petty and weak human reactions can lead to federal felony convictions during an investigation. To be a federal crime, a false statement to the federal government must be material — that is, meaningful. But federal courts have defined materiality in a way that criminalizes trifles. Under current law, a statement is material if it is the sort of statement that could influence the federal government, whether or not it actually did. Hence, federal agents interrogating people always ask some questions as to which they already have irrefutable proof, hoping that the target will lie and hand the feds an easy conviction.
That’s how FBI agents caught my client that early morning when he lied fruitlessly about being at a meeting the FBI knew with certainty he had attended. People — good people, decent people, people who are usually honest — lie foolishly when frightened and under great stress. Is that immoral? That’s a philosophical question. Should it lead to a debilitating federal felony when it does not hinder a federal investigation in the slightest, when the federal government was fishing for a lie? No. That gives the feds far too much power to turn human frailty into crime.
You should not love a process that often generates crimes rather than detecting and punishing them.
Moreover, consider that a statement isn’t a lie just because the government believes it is. Baseball star Barry Bonds was convicted of a federal felony — not for involvement in the doping that was the subject of the federal grand jury investigation, but for lying to the federal grand jury about it. But after both the trial court and a three-judge panel of the Ninth Circuit Court of Appeals upheld his obstruction-of-justice conviction, a ten-judge en banc panel reversed it 9–1, finding that Bonds’s answer to the key question was evasive and non-responsive and rambling but not a material lie. In other words, though a jury of twelve people came to a consensus that the statement was a lie, a collection of 14 judges could not. The line between a lie and a dodge — between obstruction and evasion, between mere self-defense and a debilitating conviction for a federal felony — can be murky. Federal prosecutors and investigators rely on that ambiguity to get convictions.
Some Americans hope that the independent counsel’s investigation will end Trump’s presidency. But however much you hate the president, you should not love a process that often generates crimes rather than detecting and punishing them. If you support this president, then this experience should lead you to question — perhaps for the first time — such prosecutorial power.
— Ken White, a former federal prosecutor, is a criminal-defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles. He writes about free speech and criminal-justice issues at Popehat.com.