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GUARD YOUR WORDS TO AVOID FALSE STATEMENT CHARGES Don't talk to federal investigators. Brogan v. United States, a recent Supreme Court ruling is a danger to federal workers and others who deal with federal officials. The following is some non-legal, layman's advice on how to deal with the ruling. Briefly, U.S. Code 18, Sec. 1001 is a criminal statute that makes it a felony to knowingly and willfully falsify or conceal a material fact or to make a false statement to a federal official. The punishment is up to five years in jail and a fine. To be guilty of the crime of false statement, you don't have to be under oath. You don't have to have received Miranda warnings. After this case, any false statement to just about any federal investigator could be a criminal act. The Supreme Court decision illustrates the incredibly broad sweep of this law. Brogan was a union official who was visited one night by federal investigators. He was asked if he had received payoffs from a company whose employees his union had represented. Although he'd received $150, Brogan said he had not. Had he responded "not guilty," he would not have been subject to prosecution under 1001. His conviction hinged on a small difference in words. WHAT SHOULD YOU DO? First, if possible, refuse to talk to federal auditors or investigators. If you don't say anything, you will be at less risk. But don't say that you are busy when you are not because even that statement could be a crime. Second, if you cannot evade the investigators, put them off, Insist on going over all the ground rules with them. Ask if they intend to record the questioning or take notes of your answers. Demand a chance to review the recording and the notes. Ask for all questions in writing and in advance. REFLECT THE HEAT Third, send them to your boss. Let him or her take the risk. Fourth, ask your agency general counsel for a written explanation of the bounds of the false statement crime. Meet with an agency lawyer to discuss it. That should kill a couple of weeks. Fifth, ask for a agency lawyer to be present when you are interviewed. Leave the room after each question to consult with your lawyer. Take your sweet time here. One slip and you could go to jail. Maybe you can bore the investigators to death so they will leave you alone. Finally, if you have to answer questions, be as vague as possible. If you ever watched Whitewater or Iran Contra hearings, you'll know how to do this. Practice using phrases such as "Not to my recollection" or "I can't be sure." Never give a direct, unqualified answer that could incriminate you. Don't say "no," say "not guilty." Who is at jeopardy under this law? The short answer is everybody. Federal workers who deal with vendors and any vendor that has dealings with federal agencies could be tripped up. If you have ever negotiated with a contractor or been visited by the FBI, an inspector general's office or a congressional committee, you could become a target for any statement that you made. Worse, political pressures may influence use of the law. If a federal official doesn't like you or your answers, he or she can refer you to prosecutors for investigation. Under pressure from Congress, the General Accounting Office recommended prosecution of a White House staff member under 1001 in connection with the travel office investigation. Oddly, a recent revision of 1001 may mean that it no longer applies to GAO. But executive branch and other congressional investigators are still covered by the law. If I haven't made it perfectly clear already, 1001 is an unfairly broad statute that puts people in danger for no good reason. If the government wants to prosecute people for lying, it should first put them under oath. It is disgraceful that anyone in the United States could be prosecuted and jailed for a casual statement to a federal official. If enough people gum up the investigatory process by insisting on full protections for their constitutional rights, maybe Congress will narrow the law so that it is not a trap for the unwary and a tool for overzealous prosecutors to manufacture crimes out of nothing. In the meantime, never give an answer to a federal official, straight or otherwise. |
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