Unquestionably, Special Counsel Robert Mueller’s investigation has been – likely, will continue to be – greatly enhanced by his ability to charge defendants with making false statements to government authorities, particularly the FBI. Every talking head on TV reminds us of that.
And Mueller’s not the first prosecutor by a long shot to be benefited that way. The federal criminal code makes it a felony, a valuable felony in the prosecutor’s arsenal, to lie to a government investigator who is conducting an investigation. Under Title 18 U.S. Code, Section 1001, one “shall” be fined and/or imprisoned if he “knowingly and willfully . . . makes a materially false, fictitious, or fraudulent statement or representation” to a government official. We’re not only talking about perjury (that is, false sworn testimony, say before a grand jury). All one needs to do to be prosecuted is to make a material, false statement when being interviewed by a government agent conducting an investigation.
Clearly, despite what the detectives like to say on Law & Order, one can’t be charged with outright declining to speak to the gens d’armes – not only does everyone have a fifth amendment right, everyone has the right to refuse to answer questions even without asserting the fifth amendment. But if one does choose to speak, and he lies in even an isolated, albeit “material” respect, he can be charged – such is the case even if the bulk of what he says during an interview is truthful and cooperative. Thus, one might argue – and most criminal defense lawyers accordingly caution clients – that it is simply far better to remain mute when the authorities come a knockin’ than to say anything and risk being accused of having made a false statement. A pretty sad state of affairs, don’t you think?
But let’s look at it from what, I believe, should be a prosecutor’s perspective, even though they don’t typically look at it this way. Put simply, even if the subject or target lies (and deliberately so) to the authorities, isn’t the government’s investigation nonetheless advanced by the statement? Shouldn’t the prosecutor, then, want to accord off-the-record status to the interview so that the statement itself can’t be used against him not only if a prosecution eventuates, but even if the interviewee lies during the interview. In this way, the authorities could obtain the individual’s statement, even if the price of obtaining the statement would be foregoing prosecuting the individual for the lie he gave during the interview. Separating the wheat from the chaff, isn’t it, is largely what investigators do all the time?
I myself always thought it made sense to get the story. In fact, I was a federal prosecutor before limited use interview immunity (so-called “Queen For A Day” immunity) became formalized in written instruments. In those days I, and some other prosecutors whom I knew, would sometimes tell a witness who had lied to me, or even before the interview: “This one is on the house – the next one, your next lie, if you lie, will be before the grand jury. And I will seek to prosecute you for perjury if you lie.” Yes, we were de facto giving up the possibility of prosecuting the interviewee for the office interview lies, but we gained the ability to obtain an interview that others might not obtain. And, let’s face it, by the time of those interviews, we had spoken to so many others and reviewed so many documents, that we pretty much knew when the witness was lying to us. Invaluable!
So, I herewith raise the question which may be directly at odds with conventional thinking – do we really want to discourage individuals who are would-be cooperators to decline speaking to the authorities, fearful that no benefit will come from consenting to a government interview? Cases in point: Martha Stewart, General Michael Flynn and George Papadopoulos – all charged with lying to investigators.
Indeed, there can be little doubt that what keeps President Trump’s attorneys up at night as they weigh the critical decision of whether to consent to a Mueller interview in a non-grand jury setting, is just this issue. Because even if the President has done nothing criminally wrong – including, as he puts it, “no collusion” – there will always remain the possibility that he might lie about something seemingly innocuous to him which, although hardly proof of criminal wrongdoing on his part, might nonetheless constitute a criminally (meaning materially) false statement. As Hope Hicks has recently referred to her own conduct, she was occasionally required to tell “white lies” in her job as White House communications director. And while she asserts she never told those “white lies” in connection with the Russia Investigation, any lie by her to investigators, on any subject they are investigating, if material, may theoretically come back to haunt her.
Now, it is different if an individual affirmatively seeks to be interviewed – such as by making a formal complaint to the authorities, or asking the prosecutor to interview him in an effort to persuade the government to forego prosecution or accord him leniency. In such cases, the witness is outright seeking something in exchange for his interview – and he therefore, in my opinion, should be liable to pay the price for giving a false story. But, since it is hard to believe the President’s lawyers are the ones asking for an interview, that’s not what’s at stake in Mueller seeking to question the President.
To be sure, prosecutors become typically more aggravated for some reason by a target who has the “temerity,” as they see it, to lie to them or their investigators, than about any substantive wrongdoing itself. And, of course, it’s not the American way to seek information in an interview without concomitantly demanding total truth from the interviewee. Still, and notwithstanding the understandable pique a prosecutor or agent may have from being lied to, wouldn’t the Special Counsel be better off agreeing to not prosecute a lie made during an office interview, so that he could get the President’s story, even if some of it were deliberately untruthful? Think about it!
I know – the suggestion that the Justice Department reconsider its time-honored and virtually reflexive threat to prosecute a lie rather than let the witness say what he chooses to say may be read by some as condoning lies to the authorities. It’s far from that. The Justice Department and the criminal investigative agencies that work with it – the FBI, DEA, ICE, Postal Service, Secret Service, Homeland Security, etc. – need to obtain information from whatever source available. Sometimes, and perhaps especially in these times, the best way to do that may just be to take the false with the truth, and figure it out from there.
Joel Cohen is a former state and federal prosecutor, and practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is an adjunct professor at Fordham Law School, regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of Broken Scales: Reflections on Injustice (ABA Publ. 2017). Dale J. Degenshein, special counsel at Stroock, assisted in preparing this article.
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This is an opinion piece. The views expressed in this article are those of just the author.