Short Take: The Well-Trained Executive

This could have just as easily appeared in Vox or Huff Post, but it didn’t. Instead, Ken White’s post was published in the National Review, though the message rings true no matter what your politics.

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.

This isn’t an accidental story, but a tactic employed to exploit the fact that people don’t know how these things happen, how they arrive at the crack of dawn because their target is asleep, groggy when awakened, and utterly ill-equipped to deal with this scenario unfolding around them.

A few years ago, I did a presentation at the Inside Counsel Conference in Chicago to in-house corporate counsel about how to prepare their executives for arrest. In the audience was my pal, former FBI agent and spycatcher, Eric O’Neill, at my request, who would confirm what I was saying, that the feds knew how to make sure their targets would do one of two things: either they would confess their trespasses or get caught on the wrong side of the good guy curve and lie to cover their butts.

The feds don’t care which way they nail you. Just that they nail you. They’re just as happy to prosecute you for telling a material lie as for committing the crime for which they target you.

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.

Is it really that easy? You bet it is, and not only are executive-types grossly ill-prepared to handle being the guy in the hotseat, but they’re particularly prone to fed shenaningans as they’re not used to being manhandled, treated poorly, ordered about powerlessly, and so they lash out in anger. The feds love it when their target gets angry. Angry people do foolish things. Like try to talk their way out of their situation.

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.

The in-house counsel in Chicago gave me some curious feedback after my presentation. They agreed that it was worthwhile, if not critical, to prepare their executives for that 6 am wakeup raid, particularly since corporations end up paying dearly for their exec’s poor reactions. But they could never get approval to do so.

They’ll never go for it. They’ll be outraged at the suggestion they might ever be arrested.

And that’s why the feds do it, because it works so well.

5 thoughts on “Short Take: The Well-Trained Executive

  1. B. McLeod

    This has been a great all-around technique in recent years. If you don’t like someone, but they haven’t committed a crime (or they have, but statutes have run), one need only intimidate them into lying to any federal agent. Any lie will do. Maybe even a mistake.

    1. SHG Post author

      Intimidation is one tool, but it’s not necessarily so nefarious. Denial is a normal reaction by people unused to being accused, or treated poorly. Important people really suck at not being treated with the respect they believe they’re due.

  2. JAF

    SHG,
    I think you may have been too easily dissuaded by the lawyer in Chicago. In light of your post last week about trying something new, you might want to dust off the presentation and start crafting a business plan. There is an obscene amount of money spent on corporate training, and I will tell you that in 90% of it you can skip right to the exam and pass the certification with flying colors. Any exec who has been reading the papers for the last few years has probably read at least one or two sobering stories and thought “there but for the grace of god go I”.

    1. SHG Post author

      If they want to survive the first day, I’m here to train them. My notes remain as valid today as they were then.

  3. Levi

    ” 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. ”

    It would be interesting if this standard for materiality was applied to exculpatory evidence, so that it is material if it is the sort of evidence that could influence a jury whether or not it actually would.

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