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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
Who cares what the police officer thinks? He doesn’t have the power to charge or convict you, and they can’t argue guilt to the jury based on the fact that you exercised your right to counsel. Seriously. When they say “anything you can can and will be used against you” – truer words were never spoken.
Plus the DA just can’t build a case against you based on your silence. Your words, on the other hand, can completely sink you. It’s a one way ratchet. There is literally no benefit to talking, no matter what the interrogator tells you. But there’s the potential for huge cost to it.
Sometime I’ll tell the story of when I did talk to the police …because I was about to be arrested on a false and serious accusation. It worked out but I knew it was going to be risk. A calculated one where I undressed in my driveway in fact.
Back to the OP. Does the FBI have any credibility at all? Or just power.
Efrem Zimbialist Jr , wherefore art thou?
The FBI should be required to inform parties when they have recorded conversations of the party being questioned when that party was not included in the warrant. In other words, they already know the answer to the question they are asking so the only purpose served is to get that party to lie. That’s not right.
Exactly, and this is why a good defense attorney will not let his client take the witness stand. One wrong statement can open an entirely new thread of cross-examination. You clean your client up, haircut, and suit. He no longer looks like a refugee from the Road Warrior, and if he doesn’t speak the jury doesn’t hear all the F-bombs that he thinks are adjectives.
“Which is what happens when you call the Feds.”
I continue to maintain that cops are agents of the state and the purpose for any state’s existence is the exercise of power over the people under its jurisdiction. They are not your friends. They are not your protectors. And they are certainly not there to help.
And it isn’t even a lie. To lie, one must knowingly seek to hide the truth. If you don’t know the truth, how can you lie about it?
What about Civil Forfeiture?
You can be driving on the interstate from California to Texas and get stopped because you have out of state license plates. You’re not doing anything wrong, but the little town you are driving through is having budget problems. Having trouble coming up with yearend bonuses.
So you cooperate with the law, and then they say they think you have contraband in the car. You do not consent to a search, but they still bring a K9 to sniff your car. The dog alerts, and your car is confiscated. Doesn’t matter if there is no actual contraband, the notoriously inaccurate K9 has decided your fate.
You are free to go, but the cops have a new car they can use for bonuses.
Or they stop you and discover you have some cash. Bingo! Bonuses all around!
If you have the wherewithal to file a complaint and are very persistent, some years later, you may have your property returned to you.
If you ask me, government, both big and small, Federal and State, is totally out of control.
I was a military working dog handler. In addition to patrol work, my dog was certified for drug detection. I know how military dogs are trained, certified, and what records are required. So I have to ask: on what do you base your “notoriously inaccurate K9” statement? Because in my experience, it’s the “incredibly accurate K9.” (NB: This applies to explosive detection as well.)
I have asked for a clear cut definition in the past for the difference between a Libertarian and an Anarchist. Never received an answer. I even offered my own definition, and that is an Anarchistic will actually throw a brick through a window, but the Libertarian will only throw a metaphorical brick through a window. Never got a reply to that either.
Everyone can rail about how unjust the law is, but who writes laws, lawyers do, The vast majority of legislator’s are lawyers, and they write laws to benefit other lawyers.
Most of the laws that affect people are written at the local and state level. Most voters have no idea who they’re local and state leaders are.
I’m a pretty trusting guy, but even I’m not that stupid.
I understand it’s not part of current law. I’m just saying it should be.
The ladies might be interested, Doc.
That is the way criminal law is supposed to work, but not necessarily the way it actually does.
I have no doubt you worked with well trained canines.
However:
https://www.huffingtonpost.com/radley-balko/supreme-court-considers-t_1_b_2063820.html
The dog is innocent, but if your bonus depends on seizing cash from passing motorists, the dog will please his handler and alert.
One or two of those scum criminal officers were in Nevada. Jail is something cops fear as much or more than death. I hope those who unethically ‘police for profit’ find their way to the big house.
Equity sharing with feds by local law enforcement should be banned on a state by state basis to protect their citizens and visitors from rogue departments. This issue must be dealt with at local, not federal levels.
I think that before someone can sentenced to confinement, versus a fine, for lying to law enforcement, actual harm has to be proved.
So if you lie to law enforcement, you pay a penalty, say $10,000. But if the penalty includes the loss of freedom, prove the obstruction really did obstruct or delay the investigation.
Doing time for a process crime alone, especially if the actual target of the investigation cannot be proved to have done anything, should stop.
For example, Martha Stewart should never have gone to jail.
You pose an interesting question. I think that your sentence in italics is a very good definition of a lie: to knowingly seek to hide the truth. So, with that in mind, my answer is as follows: If I don’t know the truth and if I know that I don’t know the truth and if I tell you something as if it were the truth, that is a lie, even if what I told you turns out to be true. Anyway, back to the topic at hand…the best way to protect yourself is to never talk to the police without adequate representation and precaution because they certainly can lie and mislead you.
I fully agree with your statements and it’s very sad. Whether by accident or design, sometimes (most times?) cops actually do serve and protect citizens, but it just takes one unfortunate encounter to screw up your life. I understand that police serve an important function in society and I respect them. That being said, I stay as far away from cops as I possibly can.
Interesting article. I’d say the K9 is accurate, the handler is misusing the dog. And civil asset forfeiture is an abomination and all who engage in it should be fired and made to pay restitution.
FWIW, our training was rigorous; we never knew how many targets we had (in some cases, there were none planted). The base commander certified us for probable cause every six months, after reviewing our training records, search results, apprehensions, etc., and observing a certification exercise.. He knew that if the team reported a positive response, he could authorize a further search (i.e., issue a warrant) with a clear conscience. Sounds like the civilian world needs to shape up, at least in some jurisdictions.
In your training did you know that you were being tested? I just wonder if the handler would give off a different “vibe” (for lack of a better term) if they knew that they were being tested vs a real life situation (i.e. assuming that the dog wants to please the handler, accuracy is desired in the former and “finding something” in the latter).
Same here. I am not an anarchist, but then again I certainly do not worship the badge which seems to be one of the sacraments of “Conservatism.”
I agree and I also feel the same way about judges—they have become the American equivalent of royalty.
It seems we need a good hard look into how federal law enforcement officers conduct themselves when they have an advantage to charge someone under a process crime such as making a misstatement to the FBI. When the FBI has a word-for-word recording of a conversation about which they are questioning someone, they should be required to inform that party and play the recording back to refresh the party’s memory so that there is less room for misstatements. After all, the questioning is not being done in good faith since the FBI already knows the actual answers to its questions if it is about the words spoken.
The only safe answer is to not cooperate with government officials ever. If you must then do so through a lawyer. Anybody that thinks the government is not your enemy is naive.
I am not an anarchist and nor do I speak for every single libertarian, but I would say that the difference to me is that anarchists–particularly the anarcho-capitalists–argue that every single service provided by the state could be provided more efficiently and with better results by the open market. From national defense to roads, their argument is that the state does not do a good job providing these services.
For me, I recognize that humans are going to have some governing structure since we are social animals that require community. As such I am willing to cede to government certain functions. However, if we are going to have a government, then these functions are going to be allocated with very precise allowances, for instance, the general government being able to conduct war on behalf of the states only after the popular representative branch says so. So as it pertains to cops, I think our society or government or what have you, has given far to much leeway to how cops conduct their business. Asset forfeiture is a great example. I might also add the criminal law notions of “attempt” and the power offered cops by Terry v. Ohio are other examples. In a free society, police are to be a reactive force, meaning only when a crime has been committed are cops to have any interaction with society. You want to “walk the beat,” that’s fine. But your interaction with people should not be based on any subjective reason you can concoct.
I don’t know the current state of the law, but courts have ruled that the police may use deception to obtain a confession. So the tortured logic is that the accused will be imprisoned because he lied in response to a lie. That’s not Orwell, it’s Stalin.
Which is why you never talk to the cops without a lawyer. Never.
This is what astounds me in cases like this. I mean have not Flynn or his advisors heard about Scooter Libby or Dennis Hastert?