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“Lying to the FBI” and Other Meta-Crimes
I’m a bit concerned about Michael’s Flynn’s guilty plea. Not because Michael Flynn doesn’t belong in jail. From all I can tell, he’d sell his country or his mother for a dollar, so I rather imagine that he probably belongs in jail for something. But I’m concerned about it, and about George Papadopoulos’ plea too, for that matter.
No, it’s not because I fear they’re going to turn state’s evidence on the Donald either. While I’ve been pleased with some of his actions as president, I’ve never had any confidence in Donald Trump’s character and won’t be surprised if it turns out there’s an actual fire under this smoke. Nor will I lose any sleep if he’s replaced with Mike Pence. (On the contrary, I’ll sleep better.)
The reason I’m concerned is that this proliferation of “meta” crimes — crimes of not fessing up adequately to the underlying non-crimes being investigated — just seems inherently Orwellian. I know this isn’t new. The “it’s not the crime it’s the cover-up” thing goes back at least to Watergate in my memory and frankly, probably earlier. But if you haven’t yet committed a crime and the FBI comes knocking, why do you owe a greater legal duty of candor to the FBI than you do to your brother in law?
Put another way, is it really an obstruction of justice if what was obstructed was an investigation of what is, legally, a nothing? Shouldn’t the government have to show that what it was investigating was an actual crime before it convicts someone for obstructing its investigation? Without that as an element of the crime, it just seems to be bootstrapping.
Make no mistake, any interview that goes on long enough — regardless of the character or honesty of the interviewee, or how little he or she has to hide — will produce a statement that can be ginned up into some kind of a charge of deception. Our memories are faulty and our language imprecise. So we will unavoidably say something that a prosecutor can use against us if he or she is sufficiently motivated to put the squeeze on.
And that’s the danger. These obstruction statutes can too easily become little more than a way of leveraging testimony (true or not) out of an unwilling witness, usually for the purpose of building a case (again, true or not) against a bigger fish. People are told they’re doing the right thing by voluntarily talking to the FBI, and being naive, or just decent and patriotic, they’re motivated to help catch a bad guy if they can. And before they know it they’ve gone from Good Samaritan to fool who should have kept their mouth shut.
I’d actually be inclined to propose that proof of an actual underlying offense, the investigation of which was obstructed, be made an element of any kind of obstruction charge. In other words, that obstructing an investigation, or lying to a law enforcement officer, or whatever, become a crime only with proof of the underlying crime being investigated. But this Kafkaesque (yes, I know I’ve now used both Orwell and Kafka in this post) tool is too useful so I have no serious hope that that will ever happen. Failing that, it’s probably a good rule to simply never talk to anyone from the justice department. Ever. For any reason. Including your college roommate at the reunion when he asks you how old your kids are now. Just walk away.
And if for some reason you’re ever compelled to speak to such a person, “I invoke my right against self-incrimination under the fifth amendment to the constitution” sounds nice.
Published in General
I don’t get why these guys don’t just plead the Fifth? Don’t they know they will eventually be hit a process crime if they talk long enough? I don’t remember what I ate for breakfast, much less phone conversations from months or years ago.
Ask me no questions and I’ll tell you no lies.
I don’t know, seems to me there’s a difference between refusing to cooperate and outright deception.
But I’ve never been there
I honestly think in most cases it’s the desire to do the right thing. That’s a very powerful motivation and it’s sad that you and I are cynical enough to know that it should be resisted. But there you have it.
There is a difference The former is what I’m suggesting. Walk away or failing that, plead the fifth. I’m not saying lying is ok. Just that if you choose to speak, you’re sticking your head in a noose. And as bad as that is, it’s doubly bad if you’ve stuck your head in a noose and gotten it stretched to help with the investigation of what didn’t turn out to be a crime in the first place.
I think your piece speaks to the mens rea aspect of any criminal act. If you didn’t do anything wrong to cause the investigation, how can you have the mental intent to obstruct an investigation into what is not an illegal act? I guess another way to look at it is, if one is not the accused, or if the act which is the subject of the investigation not an illegal act, and law enforcement talk to you, is misstating events or leaving out details a per se illegality?
I didn’t want to clutter up the post with it, but I did look at 18 USC 1001 (the thing Papadopoulos apparently plead to) as well as 18 USC 1512(b) (the deception part not the intimidation provisions which I regard as very different) and they appear to be very open ended. I’m no expert on federal criminal law but both the statutory text and what I see in the news tells me that you really are asking for it if you decide to “cooperate.”
I am concerned too.
Your post contains solid advice.
There are so many laws and regulations on the books that it is impossible to know whether or not you have inadvertently committed a felony before breakfast. It is best to assume that you have committed a felony and you should seek counsel immediately whenever someone employed by the Government is asking questions.
Never ever talk to a government official, much less the FBI, without counsel present. And make sure it gets recorded.
No one is innocent, it just requires a long enough interview to develop an inconsistency in your testimony to be able to charge you with a process crime.
Remember the 10 scariest words in the English language:
That is my understanding of it as well. You are asking for a process crime to be lodged against you in exchange for you giving them a bigger fish. I mean this is crap that the Nazis and Commies could have only dreamt of.
Exactly. When I was protesting my property tax assessment earlier this year, people from the assessor’s office kept coming over (while I was out of town) and calling me (my phone automatically blocks numbers I don’t recognize). Finally one guy emailed and said they wanted to come over to “measure the house” because they “hadn’t done so since 1995”. I told him no, because nothing in the dimensions had changed. Then they wanted to call me. I emailed back that there was no way I was talking to anyone from any government without a written record. Finally, they emailed me and said that before my actual protest hearing, they wanted a meeting that would be strictly off the record. I told them to take a flying leap.
Yeah, talk to an organization that can impose fines and worse off the record? I don’t think so.
Ok I see your point, but the even more bizarre thing is that they wanted to remeasure your house. Was it gaining weight now that it was older?
Unless they found a record of a building permit to add an extension to your house it’s difficult to imagine why they would want to measure the house once again.
The implications are why he was dismissed by the Trump administration. It wasn’t that he was talking to the Russians, but that he didn’t disclose it. We already knew this story – it is old. Is there something new within it?
Further, quite a few of Obama’s administration pleased the 5th, as I recall – several department investigations, as well as Hillary’s staff. Of course there was Hillary herself, who just happened to lose thousands of emails, then scrubbed her computer. Is that part of the Mueller endless investigation?
We are one year into Trump presidency. We know the Russians tried to influence our election, as well as many other elections. They are full time fake news – they also said they didn’t care who became president. We know both Trump and Hillary’s staff were working overtime on digging up dirt on each other – some of it was false, but some was true, to the extent that Comey had to review more emails 2 days before the election!
This is getting old, meanwhile serious issues within our country are yet to be resolved –
To make sure you didn’t do work to expand the house without a permit. Because then the real money kicks in.
I feel no compulsion to tell the FBI the truth about anything. It’s morphing into what Truman feared: an American Gestapo.
Yep, my favorite is when the roots are pushing up the sidewalk and the city tells you that you must repair the sidewalk, but you cannot take down the tree because the parking strip belongs to the city. Property taxes give the city, or the county, all the benefits of being a co-owner of your home with none of the liabilities.
I’m sure they wanted to make sure that no unpermited work had been done, so they could add it to the assessment. It was the county, so they don’t care about permits qua code requirements, they just wanted to make sure they they were ratcheting up the right valuation.
As an aside, they guy who emailed admitted without meaning to that the valuation is just a scam. He said that they needed to raise my rate until I was paying what the people around me were. Since I looked up what everyone around me is paying, and I’m paying 3 times as much per square foot, I call bs.
I think you are being unnecessarily antagonistic towards public servants who just want to make sure you are paying your fair share…
If they didn’t put you under oath, they shouldn’t be able to charge you with lying.
If they do put you under oath and you didn’t consult a lawyer, you deserve to be charged.
Wait a minute here. Disclose it to whom? If Trump, the administration asked him to reach out to the Russian Amb. If the government, then why would he have to disclose that he is talking to the Russian Amb?
That’s a great point. How does one purger one’s self if not under oath?
Great post. These laws are being abused.
I haven’t looked at the statutes. But many recent criminal laws do not require a mens rea. Yet another problem. If I have time I’ll research these statutes too to see if they require a mens rea.
Even though I spent time as a police officer the best advice I will give you is to ask for an attorney before you answer any questions. You need someone to advise you that is working for you. This is especially true in any incident that might lead to incarceration. A run of the mill traffic violation is the exception. That only involves a fine, a fine that will be far less than the hourly rate that an attorney will charge you.
If your initial interview does not send you to booking if you are asked to come back for a second interview there is a very good chance you will be arrested, make sure you have your attorney attend a second interview.
You have the right to counsel, exercise that right.
This makes sense, and it is what I would always tell someone to do as a lawyer.
But I wonder — if someone does invoke the right to counsel, what would you have thought as a police officer? Would it make you think the person was more likely to be guilty?
I’ve always thought that if I’m truly innocent of any wrongdoing, I’m better off to just cooperate fully and tell the truth. For example, I don’t drink. If I get pulled over and asked to take a breathalyzer, I’ll just take it. Bad legal advice, maybe, but I think it would lead to quicker and better results from me.
Of course I’m not likely to be involved in any Russia Conspiracy Theory investigations any time soon. That’s a whole different ballgame.
I’d show them J Edgar Hoover in a dress and tell them to pound salt.
Let me separate this out, the refusal to take the breathalyzer concerns implied consent. To obtain a drivers license you consent to the suspension of your license if you refuse a breathalyzer test. The refusal results in an administrative hearing rather than a criminal trial that determines your guilt or innocence of the criminal charge of DUII. They are two separate procedures.
When I read someone their Miranda Rights I already had enough probable cause and a reasonable belief to arrest them. That means I believed they were guilty, so choosing to remain silent has no bearing on their arraignment, or preliminary hearings on what evidence will be admitted or not admitted at trial. The DA can decide to prosecute, or not to prosecute a case. If there is no plea bargain then it is up to the jury to decide guilt or innocence, or in the case of a bench trial, the judge.
I’m pretty sure this has been linked before: Mr. James Duane, a professor at Regent Law School and a former defense attorney, tells you why you should never agree to be interviewed by the police.
It’s not perjury. It’s just misleading an investigator. No need for an oath under the statutes I looked at.
Keep in mind I just completed Crim Law at school and from the sounds of it, mens rea is a necessary component to any conviction that doesn’t involve a general intent crime.