Like a B-movie franchise villain who keeps coming back, 18 U.S.C. § 1001 -- the prosecutor's best friend -- has once again reared its ugly head. If it is true that a prosecutor can get a grand jury to indict a ham sandwich, it seems to also be true that a prosecutor can get a ham sandwich to violate 18 U.S.C. § 1001.
The statute provides that:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.
Lawfare reports that:
George Papadopoulos, a former Trump campaign policy adviser, pleaded guilty to making material false statements and omissions in an interview with FBI agents, in violation of 18 U.S.C. § 1001.
According to documents released on Oct. 30, 2017, in an interview conducted as part of Special Counsel Robert Mueller’s investigation into Russian election interference, Papadopoulos misrepresented the timing of conversations with an individual known to be substantially connected to Russian government officials, his knowledge of the individual’s Russian connections and the nature of his interactions with a female Russian national. ...
In a plea agreement filed on Oct. 5, 2017, Papadopoulos pleaded guilty to violating 18 U.S.C. § 1001(a)(2) by making materially false, fictitious or fraudulent statements to the FBI. 18 U.S.C. § 1001 carries a maximum sentence of five years’ imprisonment, a $250,000 fine and three years of supervised release. Since he has accepted responsibility and has no criminal history, the government recommended between zero to six months’ imprisonment and a fine between $500 and $9,500.
I last had occasion to ponder § 1001 back during the Martha Stewart insider trading case. Back then I wrote:
According to published reports, the U.S. Attorney decided going after Stewart would be an “unprecedented” expansion of insider trading law. Instead, the Feds indicted her, inter alia, over her denials that she committed insider trading. At worst, however, Martha lied about doing something that isn't illegal. I still don't get why that should be criminal. ...
Tung Yin of the Yin Blog has a very interesting post providing a good deal of detail on the legal merits of the obstruction of justice charge. I don't dispute his assessment that what Martha did could be criminal (in a hyper-technical sense, IMHO), but I still don't get why it is criminal as a matter of sound public policy or, especially, why as a prudential matter a prosectutor should have brought Count 9. I agree entirely with the first reader's assessment that it is unfair to let the government fling allegations, which they end up deciding not to charge somebody with, and then let the government prosecute that person for having denied the allegations the government decided it couldn't prove. Why isn't that just whacked?
Turning to the obstruction counts, however, I'm also skeptical of them as a prudential matter. It also seems to me that aggressive prosecutorial use of 18 U.S.C. sec. 1001 undercuts the requirement that the government prove guilt beyond a reasonable doubt. Granted the 5th amendment only gives you a right to remain silent, but shouldn't you be allowed to tell the cops "I didn't do it" without getting hauled up on charges later -- especially if they end up deciding not to charge you with the underlying crime? I mean, I can't tell you the number of times I've told a cop I didn't see the stop sign. [Ed: After reading Prof. Yin's helpful follow-up post, I added the underlined sentence for further clarification.]
I should note that Prof. Yin, to say the least, seems receptive to the prudential component of my argument:
Now, all that's left is to wonder, should the alleged lie in the actual case with the actual circumstances be a crime? And if so, is it really worth prosecuting? That's a totally different question, and certainly I can see arguments to be made that Stewart's alleged false statement really isn't worth the government's attention and time -- but for her celebrity status.
Exactly, if the defendant wasn't Martha Stewart (and if we hadn't already had Enron and so on), this case never happens. My friend Tom Smith makes this point quite pithily:
Steve Bainbridge is right on about Martha Stewart. He is perhaps too polite to add, however, that the ill-defined insider trading laws are perfect tools for ambitious prosecutors who want to go on scalp-hunting expeditions. Is Martha the most egregious insider trader in Manhattan these days? Hardly. But she is a high profile celeb with a reportedly obnoxious personality that the press would love to see fall. The Bonfire of the Vanities with the feds roasting their marshmellows on the flames.
Harsh, but true.
As with Stewart, the government -- or, to be more precise, an essentially unaccountable special prosecutor with ties to potential targets of the investigation (James Comes and the FBI) and a staff full of partisans many of whom finance and presumably vote for Democrats, including Hillary Clinton -- decided not to charge Papadopoulos with a criminal offense. Instead, they got him on obstruction.
Which brings me back to something I also wrote about the Stewart case:
Eric Rasmusen makes a good point about the Stewart conviction's likely effect on future government investigations:
My advice is to refuse to cooperate with any federal investigation, however peripheral and safe you might seem and even if you are sure no crime has been committed. Make them come back with a subpoena and make sure you have your lawyer on hand, and so forth.
This points to a law-and-economics reason for repealing the [false statements] law: the law's effect is to hinder investigations. The police should want to encourage people to talk to them, not discourage them. In fact, ordinarily I bet it is more useful to the police to have someone tell them lies than to have the person keep quiet. Police are expert in sifting through lies and half-truths, but nobody can extract information from silence motivated by fear that talking will get the speaker in trouble regardless of whether he committed any other crimes.
My friend and colleague Eugene Volokh uses Rasmusen's post as a jumping off point for these observations:
Cases such as Martha Stewart's may discourage people (even innocent people) from talking to federal authorities at all, because they might fear that some error on their part may be characterized as a lie, and might thus mean criminal punishment. In some cases (though not in all), the person may conclude that the better course is just to say nothing. That may already often happen to witnesses who are themselves being investigated for a crime, since they are often advised to say nothing in any event. But 18 USC sec. 1001 risks also discouraging cooperation by people who are just seen as witnesses.
It's hard to tell just how serious a problem this might be, and 18 USC sec. 1001 does indeed have potentially beneficial effects, too, since it may often encourage witnesses to tell the truth. But it's worth recognizing that the law can also encourage witnesses to say as little as possible, an "anticooperative effect" that might undermine the law's beneficial effect. I discuss this general problem in my Duties to Rescue and the Anticooperative Effects of Law - but as Rasmusen and Frissell point out, the problem extends far beyond just duties to rescue.
The WSJ ($) makes much the same set of points, as well:
Maybe there's some rough justice in putting Miss Stewart in an orange jumpsuit for fibbing about the circumstances of that sale with her broker. Manifestly the jury thought so. But in a case ostensibly brought on behalf of sticking up for the forgotten "little guy," we'd like to think prosecutors might have weighed the price paid by the truly innocent here: all the Martha Stewart Living shareholders, employees, executives, and so forth whose livelihoods have suffered tremendously since this case first broke into the headlines and whose futures, like their company, are now in limbo. And it's not just Miss Stewart's company: Kmart, a big buyer of Martha's products, is going to take a hit too.
We also have doubts about what "message" this conviction really does send about lying. In hindsight we can now see that had Miss Stewart said absolutely nothing at all when investigators came calling, she would not be facing jail time today. Our guess is that the corporate defense lawyers are a more reliable guide about the message of this prosecution, and right now they're pretty much all agreed that the real lesson here is to zip up completely when the FBI starts calling. Hard to see how this is a big victory for transparency.
Finally, we come to a point we've stressed before: the absence of an underlying crime. Most of the charges against Miss Stewart were brought under Title 18, Section 1001 of the U.S. Code, which makes it a crime to lie to investigators. The dangers for overreach here should be obvious, and comments made back in 1996 by Supreme Court Justice Ruth Bader Ginsburg and recently unearthed by the New York Sun now look prophetic.
"The prospect remains that an overzealous prosecutor or investigator - aware that a person has committed some suspicious acts, but unable to make a criminal case - will create a crime by surprising the subject, asking about those acts, and receiving a false denial," Justice Ginsburg wrote in a concurring opinion in Brogan v. United States, warning against the "sweeping generality" of Section 1001's language.
In short, in the Schadenfreude afterglow of Martha Stewart's conviction we also see before us the innocent people who will pay the highest price for that prosecution, as well as a huge new incentive for CEOs to clam up next time the feds ask questions.
To all of which, I can but say "yep."
When state Insurance Commissioner Jim Brown was convicted of lying to FBI agents, I wrote that henceforth Louisiana politicos would do well to think of Brown before agreeing to talk to the feds -- and then invoke "the Jim Brown Rule."
The Jim Brown Rule is very simple: if you're a public figure in Louisiana, do not talk to the FBI.
I certainly don't advocate obstructing federal investigations, but the plain truth is that FBI agents have no legal duty to tell people the truth. On the other hand, if you're being interviewed by the FBI, you have a legal duty to tell them the truth. As Brown found out the hard way, you can go to jail if you don't.
I'm sorry, but I still find that grossly unfair and tyrannical. If this is the way Mueller starts his campaign, it does not bode well for the fairness of the outcome.