Posted by:  Edmund R. Folsom, Esq., October 16, 2018.

A person accused of doing something that he or she does not want to admit doing will often deny it.  This is not breaking news.  For instance, imagine an aide to the Senate Intelligence Committee leaking information to reporters and carrying on a years-long personal relationship with a reporter that he wanted to keep secret.  Suppose someone got wind of the leaking and the relationship and asked him about it.  Would the ordinary person in that position:  (a) admit it; (b) deny it; or (c) refuse to answer any questions about it?

Experience tells me that most people in that spot would go with (b), deny it.  But what if the leaking of the information to reporters was not a crime?  What if it was only something that violated employment rules?  If the Senate aide chooses option (a) and admits it, he will lose his job.  If he chooses (c) and refuses to answer any questions about it, he will probably also lose his job.  Will that lead him to choose (b) and deny it?   How about his personal relationship with the reporter?  That relationship can’t possibly be a crime, but choosing option (a) or (c) might cause big trouble for him on the home front.  Will that lead him choose (b)?   This is the spot that Senate Intelligence Aide James A. Wolfe seems to have found himself in, with FBI agents asking the questions.   And here’s the thing, when FBI agents are the ones asking the questions, option (b), false denial, is a felony.  Anyone choosing option (b) over (a) or (c) jumps from the frying pan into the fire.  Well, maybe not anyone… read on.

Wolfe leaked information to reporters that Carter Page had been subpoenaed by the Senate Intelligence Committee in connection with its probe into attempted Russian interference in the 2016 presidential election.  Wolfe denied to FBI agents that he was the leaker.  He also denied his relationship with the certain unnamed reporter until agents showed him a photo of the two of them together.   Wolfe’s false denials to the agents led to his 3-count indictment for making false material statements to Government agents, in violation of 18 U.S.C. §1001.  On October 15, 2018, Wolfe pled guilty to a single count, admitting that he leaked the information to a reporter.  But even if Wolfe had not been asked directly whether he leaked the information, but only whether he had a personal relationship with the certain unnamed reporter, his false denial of that relationship alone was a felony under 18 U.S.C. §1001.  That statute provides, in pertinent part:

[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…makes any materially false, fictitious, or fraudulent statement or representation…shall be…imprisoned not more than 5 years. Title 18 United States Code, Section 1001.

You see, it us a federal felony, punishable by up to 5 years in prison, to knowingly and on purpose make any materially false statement to a federal agent performing his or her duties.  A statement may be “materially false” even if it doesn’t actually influence anyone. To be “material” the statement only needs to have a natural tendency to influence, or be capable of influencing, the decision of the decision-making body at issue. United States v. Gaudin, 515 U.S. 506, 510 (1995).

The statute is so broad that federal courts at one point developed what was called the “exculpatory no” doctrine to limit its application, creating an exception for merely denying the commission of an illegal act.  In other words, if an FBI agent asked a person if she did some criminal act and the person said “no,” under the “exculpatory no” doctrine, that mere denial could not be prosecuted as a violation of 18 U.S.C. §1001.  However, in Brogan v. United States, 522 U.S. 398 (1998), the Supreme Court nullified the “exculpatory no” doctrine, declaring it to be a judicially created rule, without foundation, that was inconsistent with the intent of Congress. Ever since Brogan, it has been crystal clear that a person who does as little as falsely say “I didn’t do that” to a federal agent is fair game for prosecution under 18 U.S.C., Section 1001.

The problem with a law of this breadth is its potential for abuse.  Given the frequency with which human nature ensures the statute will be violated, if it is not uniformly enforced against all violators, law enforcement are left to pick and choose to whom it is applied.

For example, on October 16, 2018, an internal Justice Department watchdog released a report about  a “senior FBI official” who resigned when investigators discovered he had accepted tickets to professional sporting events from a reporter.  News headlines emphasized that the official violated employment rules by accepting the tickets — but there was more to it than that.  The official initially denied, under oath, that he accepted the tickets.

This lie was told during an investigation of the way the FBI handled the Hillary Clinton email/private server investigation in the run-up to the 2016 presidential election.   The misstatement therefore appears to have been made to U.S. Government officials acting within their executive branch jurisdiction.  And yet, setting aside that the lie was made under oath, this senior official does not face prosecution for an 18 U.S.C. §1001 offense and his name is being withheld from the public record.  I understand all about prosecutorial discretion, but I also understand something about governmental abuse of discretion and power.  Who should be more aware of the law against lying to federal investigators, under oath no less, than an FBI official who routinely refers people for prosecution for doing exactly that?  I’m just asking.

Meanwhile, former FBI Director Andrew McCabe was fired, at least in part, for allegedly making false statements to federal investigators about approving leaks to the press, but McCabe has not been charged with an 18 U.S.C. §1001 violation.  He is, however, currently the subject of an investigation that he claims is unjust and politically motivated.  Maybe it is, but if McCabe is ultimately prosecuted for lying to investigators, he wouldn’t be the first guy singled out for the special treatment of an 18 U.S.C. §1001 prosecution, would he?  The essential difference might be that McCabe used to run the railroad before he was run over by it.


DISCLAIMER:  This post is informational only.  It does not constitute legal advice and is not to be taken as legal advice by anyone.