The point is this: The police agencies of the federal government can, and do, charge people for lying to them in the course of a criminal investigation, even when the agencies cannot prove the crime they are investigating, and even it turns out that there was no crime at all. The law that permits this is Section 1001 of Title 18, which makes it a crime to:
“knowingly and willfully . . . make any materially false, fictitious, or fraudulent statement or representation” in the course of “any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government.
As Carter and White note, Section 1001 allows the federal government to bootstrap itself to conviction of a person who had done nothing wrong, or nothing criminal anyway, until the government talked with him.
It’s happening more and more. The FBI gathers information about a person, finds facts that the person might want to conceal — not because the facts prove a crime but because they are embarrassing for some other reason — then asks about those facts in an interview, on the expectation that the person will lie and thereby incriminate himself.
This strikes me as quite wrong.
The whole process smacks of entrapment. In such cases, the law-enforcement officers are actually hoping to generate a crime. They want people to lie to them; in fact, they are highly trained in the art of getting the interviewee to tell a lie when he didn’t intend to.
There are enough real crimes and real criminals without the government deliberately creating new ones. In fact, the government might be able to focus better on catching people who are actually dangerous — like this person, for example — if it wasn’t using its resources to get people who were innocent until they made the mistake of talking with representatives of their government.
The short of it is that federal agents and prosecutors are supposed to target crime; Section 1001 encourages them to target people. It allows them to investigate with the intent of putting some target in jail even if the investigation reveals no crime.
It’s especially unfair because it takes advantage of the widespread belief that lying to the police or prosecutors is not a crime unless it occurs under oath. Why, the average person naturally thinks, does the government make perjury a crime if lying to federal authorities in any context is already a crime?
I’ll go further and say that Americans may be forgiven for believing that lying during interactions with the police is almost a time honored national tradition. The police can and do deceive suspects in order to elicit incriminating admissions. And most of us grew up watching criminal-justice shows on TV, where otherwise innocent people routinely deceive the police without being arrested for it. (I will date myself and admit that I am a fan of the old Perry Mason show, where everybody lied, all the time; one of Mason’s constant complaints was that his own clients wouldn’t even tell him the truth.) And in fact you can lie to local and state police without committing a crime; as far as I know, it’s only the federal government that punishes lying to its agents.
I am not of course defending lying — it’s prohibited by a power Who outranks me considerably — but the point is that average people believe, and quite reasonably, that outside the courtroom they can try to deceive the police without thereby subjecting themselves to prosecution. In fact, I would wager that even most lawyers, if they do not practice federal criminal law, believe that lying to federal agents in the course of an interview, without more, is not a criminal offense.
It might be, and usually is, stupid to lie to the police. It encourages them to believe that you may be hiding a crime, and it can be used to impeach the liar if and when he gets on the witness stand. But by itself it should not be a crime.
Moreover, Section 1001 discourages people from cooperating with federal agents. The natural impulse of most innocent people is to help the FBI or other federal police agencies. That is an impulse a sane criminal-justice system should want to encourage. To the extent people come to understand that simply by answering questions they are exposing themselves to legal risk, they will refuse to do the interview. Ken White already advises his clients never to talk voluntarily with agents of the federal government. If I were still practicing law, I would do the same.
That makes Section 1001 a trap for the unwary. Those who lawyer up as soon as the FBI calls will be protected. Those who don’t have the means to do that, or who naïvely assume that if they are innocent and cooperate with their government they will surely be safe, get caught in the snare.
So what should be done?
The cleanest thing would be for Congress to repeal Section 1001. There would still be many much fairer ways for the government to compel people to give information and to tell the truth in doing it, as for instance by empaneling a grand jury and calling them as witnesses. And Congress could still make lying a crime in specific circumstances (such as when a person is doing business with the government, which seems to have been the original intent of Section 1001) or when the lie is part of a broader conspiracy to obstruct justice.
Short of that, Congress could require federal agents to warn people, at the beginning of any interview, that they have the right not to answer any questions or to consult an attorney before they do, and that if they lie during the course of the interview they can be prosecuted even if they have committed no other crime. If that sounds a lot like the famous Miranda statement of rights, that’s because it is; but the Miranda ruling currently applies only when a person has been taken into custody.
Another alternative would be for Attorney General Sessions simply to direct the Department of Justice not to prosecute individuals for lying to federal agents, at least if the Department cannot establish that some other underlying crime justified the investigation in the first place. The downside of that is that it would only be the policy of one attorney general, subject to change as soon as he was gone.
I realize that this issue has arisen in the context of the Mueller investigation, and that therefore taking a position on the merits of it is likely to excite partisan instincts on both sides. As a practical matter, nothing is going to be done until the Mueller completes his inquiry. But when the political controversy dies down, the House and Senate Judiciary Committees should seriously examine Section 1001 with a view towards repeal or major reform. I see no reason why that inquiry should be partisan.
Maybe I’m missing something — I’d appreciate hearing the views of someone such as Andy McCarthy on the subject — but this seems to be a clear abuse, and with all due respect to the nation’s U.S. attorneys, I don’t trust prosecutorial discretion to deal with it.