Former US federal prosecutor Ken White has created a stir with an argument at Reason.com that neither US President Donald Trump nor anyone else should voluntarily meet with investigators. By anyone else, White does not simply mean other people facing scrutiny in special counsel Robert Mueller’s probe. He means you and me. Ever.
According to White, the only reason prosecutors ever really want to interview targets is to trap them into a story and catch them in a lie. If they are after you, you cannot talk your way out of trouble. Sure, you might have information that would exonerate you, but your lawyer can instead convey it informally to the investigators, without any risk.
White is right, but he does not go far enough. Prosecutors want to catch you in a lie because, when they cannot prove an underlying crime, it is often easy to prove that you lied to them. That is where the problem arises.
Illustration: Mountain people
I have been telling my astonished law students for decades that except in certain well-defined circumstances, lying to investigators should not be a crime. And it should not. Period.
Part of the reason for my position involves symmetry. As long as government investigators are allowed to deceive you, you should be allowed to deceive government investigators. And deceive you they may — rather willy-nilly.
If a suspect confesses after police falsely tell him that his fingerprints were found at the crime scene, fine. If a suspect confesses after police falsely tell him that they have satellite images and DNA evidence linking him to the crime, fine.
My view is that suspects should have the same freedom. If you can throw the police off the scent by telling them you were not there ... fine.
Until the late 1990s, the majority of federal appellate courts embraced a much more modest version of my suggestion, holding that the federal False Statements Act should be read to include an exception allowing a suspect to offer a simple denial of guilt in response to a direct question what was known as the “exculpatory no.”
In Brogan v. United States the US Supreme Court sharply rejected this rather mild exception. Probably the justices read the statute correctly, but it nevertheless left prosecutors with inordinate authority. A few courts have finally begun to rein in deceptive police tactics, but such decisions remain rare.
White said investigators rarely talk to suspects without strong evidence of their guilt. Again, you are not likely to be able to talk them out of pursuing you. So if your lie changes the course of the investigation, the case must not have been that strong to begin with. Another reason not to criminalize the lie.
If, on the other hand, your lie does not change the course of the investigation — if they still come after you — then the case was very strong from the beginning. And if the case is so strong that investigators still want to chase you after your lie, then your lie had no effect. So let us force them to come after you for the crime they are investigating, not for trying — and failing — to deceive them.
Remember, they can deceive you. When a lie by investigators leads to a confession, we congratulate them on their great police work. By that logic, if a lie by a suspect leads to a decision not to file charges, we should congratulate the suspect on great defense work.
Remember that the innocent as well as the guilty may lie, often to hide something that is not a crime, but would be embarrassing or in some other way impose a significant cost.
“I never met her” — when in fact you are having an extramarital affair.
“I’ve never said a bad word about my boss” — when in fact you have told friends how much you despise him.
“I did not speak to him” — when in fact you were the perfectly legal source on a story.
A lie is often our reflexive answer when we get into trouble. It can be automatic, even when what we are hiding is not a crime — and it is often not. This does not make lies a moral good — I am on record that they are almost always morally bad — but that does not mean that we should punish the natural human instinct toward self-protection. We should not criminalize a reflex.
Yet we do. All the time. Prosecutors have a plethora of ways to charge a suspect with lying to them, even when they cannot prove any other offense. Of special prosecutors this is particularly true. I have been a critic of special prosecutors for 30 years now.
A big part of the problem, as I have said in previous columns, is that they almost never prosecute the crime they were appointed to investigate. Instead, going all the way back to the administrations of former US presidents Bill Clinton and George H.W. Bush, they prosecute people for lying.
Even in the Watergate investigation, the prosecutors had trouble discovering an underlying crime. However, at least the famous March 1974 indictment that included US president Richard Nixon as an unnamed “person to the grand jury known” charged more than making false statements and false declarations, the far-too-common offenses on which prosecutors rely.
The indictment also charged conspiracy to obstruct justice and defraud federal agencies. Although the fraud charge was thin, the obstruction charge was strong — and more than sufficient to bring Nixon down.
This is a distinction that matters. Obstruction of justice should certainly be a crime, as long as the overt act is more than simply telling a lie. If you and your buddies conspire over how to mislead investigators, that should remain illegal. So should destroying evidence. And many lies to the government should still be crimes: in particular, lies under oath, whether or not before a court or grand jury, or in documents signed under penalty of perjury.
True, if prosecutors put suspects under oath before questioning them, the suspects will be more careful — but that is the point: The formal trappings surrounding the statement will play an appropriate cautionary function. The person who is under oath will think about what to say much more carefully than the person who is not. That seems to me a good thing.
One might object that all of this would make the prosecutor’s job more difficult, but prosecution should be difficult and should generally be aimed at discovering an actual crime. If, on the other hand, we are not going to grant suspects the right to lie to investigators, we should at least take away from investigators the right to lie to suspects.
One might further object that this approach would make it harder to get Trump. I am no Trump fan, but I do not think that in the rush to bring him down, we should make it easier to get the rest of us.
Stephen Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to US Supreme Court Justice Thurgood Marshall.
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