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The Steele Dossier, Flynn, 18 U.S.C. 1001 (the Martha Stewart Law) and How To Reform “Materially”

January 6th, 2018 Leave a comment Go to comments

   Byron York has a good article in the Washington Examiner on what it means for the Senate to refer the Steele dossier for criminal investigation by the FBI— basically, that Steele lied to the FBI to get it to investigate imaginary happenings, which is a crime, and the Senators want the Justice Department to file charges under 18 U.S.C. 1001 or explain why not. 

 

    In general, 18 U.S.C. 1001, the Martha Stewart law, is a detestable offence to civil liberty. The Martha Stewart case itself is a good example. She was being investigated for insider trading. She was innocent. But the FBI were out to get her, so they charged her with lying to them. She wasn’t under oath. She wasn’t concealing a crime. She was talking with them voluntarily. I don’t think they told her she would be committing a felony if she lied to them (though I could be wrong on that). But the FBI was out to get her.

 

   The present-day Michael Flynn case is the same.  So far we have seen zero evidence of any underlying crime in the Russia collusion investigation. Not only is there no evidence; there isn’t any accusation of an actual crime, only of behavior some people think should be a crime, like talking to Russians who say they have information about a presidential candidate having committed a crime. (And of course, some people think “Being Donald Trump” ought to be a crime under federal law.)  But Special Prosecutor Mueller doesn’t want  to have to say, “I didn’t find anything to prosecute”, so he prosecutes Flynn for making false statements. 

 

     Democrats will answer that there probably is an underlying crime and we just haven’t heard about it yet. In fact, we haven’t even imagined it yet, because though we know Trump has a criminal mind, we have to do some fishing first before we find out  the exact US Code number of  the numerous crimes someone like him must have committed.  If there is an underlying crime, it is useful for the FBI to have the Martha Stewart law to use as leverage on potential witnesses.

 

   Indeed, I am sure the Martha Steward law has gotten some desirable results.  Probably some drug dealer has been entrapped using it, and has turned states-evidence and implicated his boss, whose resulting conviction is  a victory for justice.  The problem is, the same could be said of using thumbscrews. If we let the FBI randomly mash up the thumbs of shady characters, we’d uncover a lot of crime. There’s be some false accusations, but the FBI knows all about that danger. Now, any thug who cooperates is careful told, over and over, that if he lies in his testimony the FBI will come back and prosecute him to the hilt. If we allow torture, we just modify that to say that false testimony will result not just in mushing of your thumbs, but of each finger, separately and slowly. Nobody can pretend this would not be an effective crime-fighting tool. I bet it would be far more effective than the Martha Stewart rule.  In fact, what would be even more effective would be to skip the trial too and just let the FBI shoot the offender once they’ve found him.  But letting the FBI use unfair and coercive techniques is wrong and dangerous. It will catch more of the guilty, but it will oppress the innocent too. 

 

  Prosecution of Christopher Steele, however, would be a good use of the Martha Stewart law. The original motivation for the law was to punish people who lie to federal agents and cause them to waste their time as a result. That is exactly what Steele did. He forged the dossier and gave it to the FBI, causing them to start a useless investigation. In fact, it eventually led to the appointment of a Special Counsel, a tremendous waste of resources and public attention. I can think of no better case for prosecution under 18 U.S.C. 1001.

 

   It wouldn’t be hard to fix 18 U.S.C. 1001 so that it would still apply to the Christopher Steeles of this world but not to the Martha Stewarts. In fact, it wouldn’t even require amendment by Congress, just adjustment by the courts. The fix would be to interpret the word “material” correctly. The statute  18 U.S.C. 1001 reads like this:

 

  [W]hoever, 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 …

 

   The statement has to be “materially false” as well as “willful”. What does that mean?  The idea is that we don’t want to penalize people for willfully saying making a false statement that’s irrelevant and won’t waste FBI time.  If someone says he’s 30 when he’ really 40, that wouldn’t be a material lie. Helen Murillo says in a useful Lawfare article on federal perjury, false statement, and obstruction law  that a statement is “material” if it is “predictably capable of affecting . . . [an] official decision.”  That’s standard  judicial interpretation. I suggest that the definition be modified to “predictably affecting an official decision by misleading a federal agent.” Then, the law wouldn’t apply to immaterial false statements. It wouldn’t apply to lies that might possibly cause the FBI to waste time, or to lies that the FBI already knows are lies.  It would no longer be whether the person accused had bad intentions, but whether what they did had any bad effects.

 

(Footnote: Apparently in 2014, the Department of Justice changed its position and did say that for the life to be “willful” it had to be that the defendant knew about Section 1001 rather than thinking that he was was if he wasn’t under oath.)

 

    Some states, including California and Georgia, do have laws similar to the Martha Stewart law, but  I haven’t heard of them  being abused like the federal one.  (My own Indiana seems not to have such a law—good for us!) What state laws do enforce are  statutes that make  it a crime to falsely report a crime to the  police. That   punishes people who   waste police time and  use the power of the state to harass their enemies  with  false charges. In the extreme cases, we get results like the man recently killed by a SWAT team that surrounded his house after a personal enemy phoned in a false report.

 

  It is hard to misuse a false report law, because it is not for false statements in general,   but for false reports of crimes.  To break it, you generally have to go to the police, not have them come to you, and you know you are doing something serious, not having a casual conversation with them. And it isn’t little details that will get you: it’s the substance.  For example California Penal Code PEN § 148.5 says

 

(a) Every person who reports to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33 , the Attorney General, or a deputy attorney general, or a district attorney, or a deputy district attorney that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor.

 

(b) Every person who reports to any other peace officer, as defined in Chapter 4.5 (commencing with Section 830 ) of Title 3 of Part 2, that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor if (1) the false information is given while the peace officer is engaged in the performance of his or her duties as a peace officer and (2) the person providing the false information knows or should have known that the person receiving the information is a peace officer.

 

 (Weirdly enough,  it’s legal to knowingly make false reports of child abuse in order to get your personal enemy into trouble, though I suppose—I hope—he can sue you in civil court for defamation later—

“(e) This section does not apply to reports made by persons who are required by statute to report known or suspected instances of child abuse, dependent adult abuse, or elder abuse.”)

 

   So, suppose you tell the police that you saw a young woman give the mayor a bribe, and you really didn’t. You are guilty of a crime, because you’ve wasted the time of the police and you have falsely accused the mayor.  If your statement is true, of course you don’t have to worry. But suppose you report that you saw an old woman give the mayor a bribe, and it was really a young woman. You’re still safe. You don’t have to worry that the police, on receiving your report, will decide to let the mayor go but charge you instead because of your mistake.

 

  With the FBI, it’s different. If you go to the FBI and report that you saw a woman give a bribe to a senior FBI official,  what do you think would happen? Here is one scenario. The FBI will take it very seriously. They will ask you for many, many, further details. They will be so careful because they  know you will make a mistaken eventually. Then they will charge you with not just a misdemeanor but a felony for making the false statement that the briber was an old woman when it really was a young woman. Don’t worry, though. They will agree not to press charges so long as you keep quiet about seeing someone bribe the senior FBI official.  They take that kind of accusation very seriously, meaning that they are very serious about making sure it never sees the light of day.

 

   You may wonder why I didn’t make my example parallel  with the city example by saying “the President” instead of “a senior FBI official”. That’s because the scenario becomes a little more complicated. The FBI would be very unhappy about hearing an accusation against a senior FBI official, or, indeed, against their most junior agent. They value loyalty to each other, and they value the reputation of the agency. But they would be delighted to hear an accusation against the President, or, even better, against the Attorney-General.  This scenario would work out a little differently. Again, the FBI would ask you lots of questions until they caught you in a mistake. Again, they would threaten to charge you with a felony. But they wouldn’t make quite the same non-prosecution deal.  Instead, they would leave you hanging, telling you to keep quiet while they were investigating further.  They would wait until the President tried to do something to the FBI like cut its budget or insult its Director. Then they would go to the President and blackmail him, telling him that they have this report and they can use it to for felony charges against either him or against the accuser— it’s the President’s choice.

 

  Am I being unfair to the FBI? I hope so, but they truly are a rogue agency, and a dangerous one.  They clearly hate Trump.  I expect they hate the Attorney-General too, though there’s no hatred like Trump Hatred. Hating Attorney-General Sessions would just be because he’s conservative and because the Attorney-General is the natural rival of the FBI Director, sort of his boss, but not in effective control. Hating Trump, they might actually decide to go after him for bribery rather than trade that bargaining chip for a bigger budget. It’s hard to say: when ideology and money come into conflict, there’s no telling what may happen.

 

   People have the wrong idea about the FBI, though. Conservative Republicans say that the leadership is corrupt, but the rank-and-file are all good, honorable, men. Liberal Republicans and Democrats say that the entire civil service are good, honorable men and women.  They’re both wrong.  Repeatedly we have seen that the rank and file contains civil servant just as corrupt as the higher-ups.  Ruby Ridge, Waco, this year Bundey, etc.   And where the do higher-ups come from, anyway? Except for the very top people, the political appointees, they are former rank and file. It’s not like being promoted suddenly corrupts them.  It’s not, to be sure, that they are corrupt in the sense of accepting bribes from bad guys like the Mafia. I haven’t heard of any of that (though bribes from the Russians are a different matter…). It’s that the FBI does what it thinks is good for the country, which can mean using illegal means to go after criminals and using leaks and other means to go after politicians who threaten the FBI.

 

   It’s actually funny how people say the FBI should be independent because it’s so powerful. The opposite is true.  Because the FBI can oppress us, we need it to be under  control of the people, which means under political control. We do not want the Director to be independent. “Independent” means free to do anything he likes, without accountability, except that if his people commit  a crime they’ll get in trouble if  somebody can investigate it without using the FBI or without the FBI blocking it by taking over the investigation and putting it to sleep.

 

     This is something I’ve studied a lot in my scholarly work with Mark Ramseyer at Harvard. See my vitae and our book, xxx, which talks about judges and bureaucrats in general as well as in Japan.  There’s a good case for making judges independent. A judge who can’t be fired can do many bad things, but he needs the cases to come to his court first, and he only has a tiny personal staff. A police chief who can’t be fired can go after anyone he wants, on his own initiative, with no “appellate police chief” and without having to get 4 other colleagues to agree. He can’t convict someone of a crime, but he can put them in jail, and, in fact, he can invent enough evidence to get even and honest judge and jury to convict anyone. He has a huge staff, plenty big enough for some of them to spend their time manufacturing evidence. For a city police chief, there’s always the state police or the FBI to come in and investigate. But who investigates the FBI?

 

 (Footnote: It seems some states do have a different, even worse, kind of “false statement” law, which criminalizes making false statements in political campaigns. A unanimous U.S. Supreme Court held Ohio’s law to be unconstitutional in 2014, an easy decision.)

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