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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
To see this in action, go back and watch Mike Ehrmantraut being deposed.
(It’s Better Call Saul. But everybody knows this, because everybody watched this, right??)
I understand about “not talking to cops without a lawyer” but what about those of us who do not have a few thousand dollars lying around for a lawyer, just because?
You do not have to speak to cops without a lawyer. There is nothing that the cops can do to you to compel you to speak to them without a lawyer. At least that is my understanding. If you are just being questioned as a matter of “routine,” you don’t have to answer their questions. If they arrest you, you don’t have to answer their questions. If that is not correct, I am curious to know what the standard is, but I believe this is the standard.
Refusing to answer questions without an attorney present becomes an unattractive option for political types when the refusal will immediately be leaked to hostile journalists.
Leaks to media is another example of an area where law enforcement behavior needs to be addressed.
If it has escalated beyond, ‘license and registration’ to ‘do you consent to a search’ you are going to pay for a lawyer no matter what. You’re better off requesting a lawyer and not answering any questions. Do not consent to a search under any circumstances. You will pay for a lawyer before or after your arrest. And anything you said before getting counsels advice will be used against you.
Unfortunately, in today’s America, if a cop stops you and doesn’t like you for whatever reason, your property and freedom are at risk. Cops are not your friends, they are state operatives looking for malfeasance, and whether you like it or not, sometimes you look like malfeasance.
Don’t get me wrong, I am very glad to have the police policing, they put the civil into civilization. Without proper policing, things get very bad very quickly. See the ‘Ferguson’ effect in Missouri and Baltimore. However, the cop on the beat doesn’t know you, and he is looking for miscreants. He deals with the scum of the earth on an hourly basis, and his default attitude is that a suspect is not being truthful. Sometimes you look like a suspect because someone committed a crime in a car similar to yours.
So though I applaud and very much appreciate the cop on the beat, if I am interacting with the cop on the beat, I am extremely careful, and will not volunteer any information other than my license and registration. If he wants to conduct a search, I want to consult a lawyer.
You don’t need to be put under oath to violate 18 USC 1001, though it requires the statement in question to be made “knowingly and willfully“. You can simply make an inaccurate statement in a letter sent to the government and be subject to prosecution if they believe the statement to be made knowingly and willfully. I speak from experience, having been involved in a 18 USC 1001 prosecution filed years ago by Robert Mueller, a case that never should have been filed, but for Mueller’s love of playing to the crowd.
What’s the purpose of this law? Is it what Mueller uses it for? If so, can someone present here the arguments for why this is a good law?
The purpose of the law is to prevent people and companies from lying to federal government authorities (unfortunately there is no law prevent federal authorities from lying to the people – see “if you like your plan you can keep it“). The case I was involved with started with a request for information on activities going back 20 years, from a federal agency (authorized by statute). Failure to respond would subject you to daily penalties of up to $25,000 a day.
Mueller and other prosecutors are doing what prosecutors always do, stretching things perhaps beyond the intent of those who enacted the laws, yet in a strict reading consistent with the language of the statute. It is just one of many examples of why we need to avoid being panicked into creating new federal criminal statutes or giving prosecutors additional authorities based upon terrible incidents because they will inevitably use their powers far beyond the intended scope.
FIFY.
Then you should feel absolutely compelled to keep your mouth shut when not speaking to them. Because if you lie, about anything, they have you by the short and curlies. If there’s anything I learned watching WWII movies as a kid, you don’t want the Gestapo to have you by the short and curlies.
What Doug said. Every corporate compliance program ever tells the execs the same thing: If you are getting off a flight (typically Friday evening on your way home from a road trip), and some guys walk up to you show badges and say they would like to ask you some questions, decline. Say you want counsel. Do not answer any questions. If they ask you a question, repeat “I would like to speak with counsel.” It is good advice.
Good (and important) point, @cato rand.
Although the offenses are in the same family of crimes, lying to the FBI is not the same as perjury, NOR is it the same as obstruction of justice.
The power that the FBI and other law enforcement personnel gain by this two-fer–we can ask you questions and if you lie we can prosecute you JUST for lying, even if there was no there there–is indeed troubling, and definitely subject to abuse.
However, there is a significant “public resources” rationale that deserves play. If law enforcement has to factor in a percentage possibility that each bit of information it receives from citizens is false, the resource cost of gathering information goes up. Law enforcement should be able to conduct even preliminary investigations–perhaps especially preliminary investigations–broadly and efficiently, without having to worry (much) about this factor.
Because citizens are permitted to either claim up, lawyer up, or take the Fifth (as appropriate), they have no excuse for lying.
My default position is lying to federal authorities. Why are they even bothering me with their questions?
This is why Pournelle said that when being interviewed by the FBI always have a lawyer present.
“If they say. But a innocent person has nothing to hide!”
Always answer. “Tell that to Martha Stewart.”
Me I would always add a Code of Conduct violation to that response.
I agree with everything in Cato’s OP, but I want to add two points (these may have been raised in earlier comments – I haven’t read them all).
First, if an FBI “investigator” questions a witness about something already known to the investigator, and already proven by extrinsic evidence, then the only possible purpose for the interview is to catch the witness in a “lie.” That is entrapment, pure and simple. Here, the FBI already had a recorded transcript of everything that was said in Flynn’s meeting with the Russian diplomat. There was no possible reason to interview Flynn about that meeting, other than to trap Flynn into making a false statement.
Second, our law enforcement process has devolved into ginning up charges against one witness, and then offering a plea deal to get testimony against another defendant. This has become standard operating procedure. But a witness who offers testimony only to escape the threat of prison will say anything the prosecutor wants to hear, whether it is true or not. Such a witness is inherently incredible. It is ridiculous to suggest that such testimony could prove anything beyond a reasonable doubt. The reasonable doubt is baked right into the cake. I would support a rule of evidence that would preclude a prosecutor from offering any testimony from a witness who had been bribed with a plea deal. I know this would allow some guilty people to escape conviction, but that is the whole point of our Constitution and the “beyond a reasonable doubt” standard.
I had the dubious honour of being a Crown witness in a criminal trail. The initial interview with the investigators felt like a prosecution of me… But when doing such things its best to have your council there at the meeting and always take your time to answer a question with as few words as possible.
How was the interview compared to how the defense attorney treated you?
That is correct. “You have the right to remain silent” is part of the Miranda warning for a reason.
I’ve always been a little bit unclear about this. A suspect certainly has the right to take the Fifth. But a witness who refuses to divulge information relevant to a criminal investigation – if that information could not tend to incriminate the witness – might be charged with obstructing justice. I am not aware of any Supreme Court authority which definitively resolves this issue.
But the current prosecutorial practice might lead any witness to fear making a misstatement and being charged. I, for one, have a very poor memory of incidents, particularly those of little import, so I would likely respond ‘I don’t recall’ to any question that would require resort to my memory. Am I ok?
That would be my approach too, especially if circumstances made taking the Fifth an embarrassment to myself or my employer. Having examined a lot of squirrly witnesses in my time, I might even take a lesson from them and adopt the more evasive formulation of “I don’t recall having done that.” Are you ok? You’re better, but not perfect. Someone could conclude that your claim that you don’t recall is itself a lie. Also, you have somewhat compromised your ability to make a flat denial at a later time, if you need to.
Haha, it went very well. Not to toot my own horn, but I made a very good witness. Made the judge laugh and the Crown got its conviction.
Sorry it took me this long to answer; t’was a busy weekend.
Yes, we knew we were being “tested”; however, that usually had no effect on how we handled our dogs. The teams worked the same way in the field as in training. We knew that too many false responses would lead to decertification. I for one worked way too hard learning to read my dog to throw that away; most other handlers felt the same way.
Maybe one day I’ll do a post on handling a military working dog, if I thought anyone would had interest.
From Popehat:
https://www.popehat.com/2017/12/04/everybody-lies-fbi-edition/
Read the whole thing as they say.