When people learn that it’s not merely lawful, but encouraged, for special agents to lie to people in order to “catch” them or get them to admit to a crime, they are offended. When you add to the mix that it’s a crime for a person to lie to them, they get outraged. How is it possible that this is allowed?
Welcome to criminal law.
That can happen, you know. They write. Someone gets bothered.
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.
This is one, but not the only, reason why you should never talk to special agents, and certainly never do so without competent counsel. But is it not the foolishness of targets or suspects, or even the meaningless “person of interest,” to not just talk, but try to talk their way out of, whatever uncomfortable questions get asked?
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.
When a good criminal defense lawyer preps his client for a meeting with the feds, whether it’s an interview or a proffer, we tell them this. We explain that they will know stuff that we don’t know that they know. We explain that they will believe they know stuff, even if what they know isn’t correct, that we don’t know that they think they know.
We tell them they will bait a perjury trap. We will tell them that before going in, they need to make peace with the idea that they can either tell the truth or not, and if not, may well be prosecuted under §1001, even if they didn’t do whatever is in issue to explain why the feds want to talk to them in the first place.
And we tell them that even if they tell the truth, if their truth doesn’t match the feds’ truth (which often comes from the mouths of rats, who aren’t always the most reliable sources of information), they could still be prosecuted.
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.
Words like “entrapment” obscure the problem. It requires more than opportunity to commit the crime, but lack of propensity. The problem is that people are prone to tell the story in a way that makes them look good, or at least, not too bad. So when they ask the embarrassing question, the humiliating question, the loaded question that you just know is going to be followed up by the guy thinking you did it, you fudge the answer.
And then they own you.
Much as §1001 can be used as a coercive weapon against people who committed no worse crime than not wanting to be in the government’s crosshairs, and what normal person doesn’t, there is a point to be made about law enforcement having a tool to compel people to tell the truth. Do we not want people to tell police the truth? Do we not want to give law enforcement the means to find the truth? Is there a countervailing policy in favor of lying to the government?
That it’s an asymmetrical power, that they can lie to you with impunity, but you have to tell the truth or you’ve committed a crime, is how the system is intentionally built. It serves a rational purpose, whether you like it or not. It’s one of many aspects of the legal system that’s asymmetrical. There’s a reason why the government can charge you with a crime but you can’t empanel a grand jury and indict a cop.
But that doesn’t mean there aren’t tweaks that could introduce a greater measure of legitimacy to the concept. One of the elements of a §1001 offense is that the misrepresentation be “materially false.” In other words, it’s not enough that it not be completely honest, but that the dishonesty must relate to a fact which is relevant and sufficiently significant to the matter at hand.
Ken White raised the point that by adding the element of the misrepresentation being relied upon by the government to its detriment, it could change §1001 from being used primarily as a perjury trap to the investigative tool it was intended to be. Does this solve the problem?
Short of [repealing §1001], 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.
The irony here is that everybody knows the Miranda warnings. It’s on all the cop shows. Yet, people talk to the cops. All the time. Talk, talk, talk. You’re not required to meet with the feds. You have the right to say no. You have the right to get a lawyer, to have the lawyer with you should you decide to have a chat. The lawyer’s job is to warn you of §1001, among many other things.
So now you know about the trap, just as so many others who went in to talk to the feds even though they didn’t have to, and ended up charged with a §1001 violation. Maybe the law isn’t the problem at all.