MOST PERNICIOUS STATUTE
by Virginia Postrel • Jun 5, 2003 at 10:04 am
At the press conference announcing the indictments of Martha Stewart, U.S. Attorney James B. Comey said, "This criminal case is about lying--lying to the F.B.I., lying to the S.E.C., lying to investors."
Not fraud, lying. That rang a bell. At the last advisory board meeting of the Foundation for Individual Rights in Education (FIRE), I had a conversation with FIRE co-founder Harvey Silverglate about the expansive tools federal prosecutors can use to snare just about anyone. (Harvey is both a principled civil libertarian and a criminal defense attorney.) Number one on the list is the infinitely pliable 18 USC sec. 1001, which makes it a crime to lie to a federal agent.
Last night, I emailed Harvey to see if he had written anything about the statute that I might link to. His articles on the subject aren't online, but he sent the following:
I consider this statute to be one of the most pernicious of all. Here's why. The crime is committed by making a material false statement to any federal official, not under oath. Mind you, the federal official can lie his head off to the citizen and it's no problem. This turns liberty on its head. Some "government of the people" where "the people are sovereign."
Worse, federal officials rarely get the statement in writing or on tape. So it's the word of two FBI agents who conducted the interview and then wrote-up their version of the interview in an FBI 302 form report. If the agents' memory conflicts with those of the interviwee, guess who wins?
Worse yet: Here's how the feds abuse this statute. They interview a witness; they write up the Form 302 report claiming that the witness said stuff helpful to the Feds' investigation or prosecution of the chosen target; the witness is then told he/she has to testify against the target; the witness says that what the 302 report says is not an accurate summary of what the witness actually told the agents (it's not on tape, of course); the feds tell the witness that unless he/she testifies consistent with the 302, the witness will be charged with a 1001 "false statement" violation (i.e., either the earlier version supposedly told to the feds was true, or the new version is true, but both cannot be true, so one is false -- hence the witness must now testify consistent with what the 302 report says he earlier told the interviewers).
When the feds cannot prove a substantive crime, they proceed to entrap the defendant, or potential but unhelpful witnesses, with this pernicious statute and these pernicious techniques.
Add up the number of government officials to whom we may not lie! Awful.
So far I haven't found an online copy of the actual indictment, so I can't confirm that this statute is involved. But it certainly sounds like it.
Update: Thanks to reader Joey Gibson for directing me to The Smoking Gun's posting of the indictment, which does indeed include charges under 18 USC sec. 1001.