{"id":10642,"date":"2017-12-04T06:23:35","date_gmt":"2017-12-04T06:23:35","guid":{"rendered":"http:\/\/www.lifeandnews.com\/articles\/?p=10642"},"modified":"2017-12-05T06:28:23","modified_gmt":"2017-12-05T06:28:23","slug":"should-lying-to-the-fbi-be-a-crime","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/should-lying-to-the-fbi-be-a-crime\/","title":{"rendered":"Should lying to the FBI be a crime?"},"content":{"rendered":"<p><span><a href=\"https:\/\/theconversation.com\/profiles\/austin-sarat-174772\">Austin Sarat<\/a>, <em><a href=\"http:\/\/theconversation.com\/institutions\/amherst-college-2155\">Amherst College<\/a><\/em><\/span><\/p>\n<p>On Dec. 1, Michael Flynn, former national security adviser to President Donald Trump, <a href=\"https:\/\/www.nytimes.com\/2017\/12\/01\/us\/politics\/michael-flynn-guilty-russia-investigation.html?_r=0\">pleaded guilty<\/a> to the charge of lying to the FBI about his contacts and conversations with Russians. <\/p>\n<p>Flynn admitted to violating the federal statute <a href=\"https:\/\/www.law.cornell.edu\/uscode\/text\/18\/1001\">18 USC Section 1001<\/a>, which prohibits making \u201cfalse statements\u201d to government officials. <\/p>\n<p>As someone who teaches a course called Secrets and Lies and has <a href=\"https:\/\/searchworks.stanford.edu\/view\/11382916\">written about<\/a> how common it is for people to lie in their dealings with the government, I was not surprised to learn either of Flynn\u2019s lies or the government\u2019s response to them. However, I was surprised to read President Trump\u2019s tweet on Saturday apparently acknowledging that he knew Flynn had lied to the FBI and fired him because of it.<\/p>\n<blockquote class=\"twitter-tweet\" lang=\"en\"><p>\n            <a href=\"https:\/\/twitter.com\/realDonaldTrump\/status\/937007006526959618\"><\/a>\n           <\/p><\/blockquote>\n<p>          <script async src=\"\/\/platform.twitter.com\/widgets.js\" charset=\"utf-8\"><\/script><\/p>\n<p>Despite the personal moral objections that most people have to lying, the law under which Flynn was charged by Special Prosecutor Robert Mueller is a <a href=\"https:\/\/repository.jmls.edu\/cgi\/viewcontent.cgi?referer=https:\/\/www.google.com\/&amp;httpsredir=1&amp;article=1069&amp;context=lawreview\">controversial one<\/a>. It applies in a <a href=\"https:\/\/fas.org\/sgp\/crs\/misc\/98-808.pdf\">sweeping manner<\/a> to \u201cany matter within the jurisdiction of the executive, legislative, or judicial branch.\u201d<\/p>\n<p>Moreover, unlike the crime of perjury, the false statements statute means that a person can be punished for lying even if he was not under oath in <a href=\"https:\/\/www.law.cornell.edu\/uscode\/text\/18\/1001\">an official proceeding<\/a>, and even if he was not warned that lying would be punished. <\/p>\n<p>So, why is it against the law to lie to government officials?<\/p>\n<h2>False statements and the right to remain silent<\/h2>\n<p>American law generally is aggressive in criminalizing lying, in part because it offers citizens an alternative if they fear the consequences of telling the truth to a government official.<\/p>\n<p>That alternative is found in the Fifth Amendment\u2019s protection against compulsory self-incrimination. It affords individuals a right to remain silent and allows them to avoid speaking damaging truths. When it was added to the U.S. Constitution, the Fifth Amendment was partly a <a href=\"https:\/\/books.google.com\/books\/about\/Origins_of_the_Fifth_Amendment.html?id=XLIVAQAAIAAJ\">reaction to abuses<\/a> perpetrated by England\u2019s Courts of Star Chamber, which operated from 1487 to 1681. Those courts were used to suppress opposition to royal policies, and they used torture to exact confessions from the King\u2019s enemies.<\/p>\n<p>It was also a recognition of the natural law principle that no person should be forced to become an instrument of his own demise.<\/p>\n<p>However, as the late Justice Antonin Scalia <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/522\/398\/case.html\">once explained<\/a>, \u201cNeither the text nor the spirit of the Fifth Amendment confers a privilege to lie. \u2018[P]roper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely.\u2019\u201d <\/p>\n<p>Flynn did not invoke his Fifth Amendment right to remain silent. He chose to answer the questions posed by the FBI. <\/p>\n<p>While we can never know exactly why he did so, we do know that silence is very <a href=\"http:\/\/press.uchicago.edu\/ucp\/books\/book\/chicago\/T\/bo3627888.html\">hard to maintain<\/a>. This is especially true in the face of a question that might expose one to legal jeopardy. In such a situation, many people feel compelled to speak when they are asked to do so. They want to seem cooperative, or to try to exonerate themselves.<\/p>\n<p>Silence <a href=\"https:\/\/cases.justia.com\/california\/supreme-court\/2014-s202107.pdf?ts=1408035715\">accomplishes neither<\/a> of those goals. Nonetheless, the law requires that if people choose to speak to government officials they must do so truthfully.<\/p>\n<h2>Making lying to the state against the law<\/h2>\n<p>The prohibition of false statements traces its origins to the Civil War, when Congress <a href=\"https:\/\/repository.jmls.edu\/cgi\/viewcontent.cgi?referer=https:\/\/www.google.com\/&amp;httpsredir=1&amp;article=1069&amp;context=lawreview\">reacted to<\/a> a \u201c\u2018spate of frauds\u2019 submitted by military con artists scamming the United States War Department.\u201d It forbade people in the military from making fraudulent requests for payments from the government. Soon, however, the <a href=\"http:\/\/www.law.msu.edu\/king\/2008\/Avsharian.pdf\">law was broadened<\/a> to include similar requests when made by any person or corporation.<\/p>\n<p>To successfully <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/270\/339\/case.html\">prosecute someone<\/a> for making a false claim, the government had to show that that the accused cheated the government out of money or property. In the 1930s, Congress <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/312\/86\/\">removed the requirement<\/a> that there had to be a resultant financial harm. This constituted a substantial departure from what the legal commentator Giles Burch calls the <a href=\"http:\/\/chicagounbound.uchicago.edu\/cgi\/viewcontent.cgi?article=4688&amp;context=uclrev\">traditional view<\/a> that \u201cpolice authority does not\u2026 include the power to punish suspects who lie.\u201d<\/p>\n<p>Since the 1930s, the statute used against Flynn <a href=\"https:\/\/www.lawfareblog.com\/law-lying-perjury-false-statements-and-obstruction\">has experienced<\/a> a \u201ccreeping expansion.\u201d As a result, it has become a powerful tool that criminalizes what someone says even in cases, like that of <a href=\"http:\/\/www.washingtonpost.com\/wp-dyn\/content\/article\/2007\/03\/06\/AR2007030600648.html\">Scooter Libby<\/a>, longtime aide to former Vice President Dick Cheney, when the government cannot prove any other wrongdoing. <\/p>\n<p>Critics argue that 18 USC Section 1001 now has <a href=\"http:\/\/chicagounbound.uchicago.edu\/cgi\/viewcontent.cgi?article=4688&amp;context=uclrev\">too broad<\/a> a reach. They worry that it gives prosecutors what United States Supreme Court Justice Ruth Bader Ginsburg <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/522\/398\/case.html\">once called<\/a> \u201cextraordinary authority\u2026to manufacture crimes.\u201d Yet despite the expansive use of the false claims statute, American law sometimes has looked the other way when lies are told. Thus prosecutions for perjury have been <a href=\"https:\/\/www.jstor.org\/stable\/1142605?mag=why-is-perjury-so-rarely-prosecuted&amp;seq=1#page_scan_tab_contents\">quite rare<\/a> and courts have generally <a href=\"http:\/\/ir.lawnet.fordham.edu\/cgi\/viewcontent.cgi?article=4615&amp;context=flr\">been reluctant<\/a> to enforce section 1001.<\/p>\n<p>Moreover, they sometimes <a href=\"http:\/\/caselaw.findlaw.com\/il-court-of-appeals\/1410085.html\">invoked a doctrine<\/a> called the \u201cexculpatory no\u201d to excuse individuals who falsely denied guilt in response to an investigator\u2019s question. In 1998, the Supreme Court put an end to this practice. As <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/522\/398\/case.html\">Justice Scalia explained<\/a> at the time, \u201cCertainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function.\u201d<\/p>\n<h2>The harm of Flynn\u2019s lies<\/h2>\n<p>I\u2019d argue that in Flynn\u2019s case, 18 USC Section 1001 was used correctly and to good effect. What Justice Scalia said in his 1998 opinion helps us identify the harm Flynn did. His lies indeed \u201cperverted the function\u201d of the FBI and impeded it from doing what it must do in a nation governed by the rule of law \u2013 prevent government officials and those seeking power from subverting our system of government.<\/p>\n<p><img loading=\"lazy\" src=\"https:\/\/counter.theconversation.com\/content\/88541\/count.gif?distributor=republish-lightbox-basic\" alt=\"The Conversation\" width=\"1\" height=\"1\" \/>The philosopher Immanuel Kant long ago <a href=\"https:\/\/www.amazon.com\/Kant-Critique-Practical-Reason-Immanuel\/dp\/1452801347\">noted that<\/a> lies like Flynn\u2019s threaten the foundations of organized society and \u201cvitiate the source of law itself.\u201d Never has Kant\u2019s insight been more pertinent than it is in the United States today.<\/p>\n<p><span><a href=\"https:\/\/theconversation.com\/profiles\/austin-sarat-174772\">Austin Sarat<\/a>, Professor of Jurisprudence and Political Science, <em><a href=\"http:\/\/theconversation.com\/institutions\/amherst-college-2155\">Amherst College<\/a><\/em><\/span><\/p>\n<p>This article was originally published on <a href=\"http:\/\/theconversation.com\">The Conversation<\/a>. Read the <a href=\"https:\/\/theconversation.com\/should-lying-to-the-fbi-be-a-crime-88541\">original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Austin Sarat, Amherst College On Dec. 1, Michael Flynn, former national security adviser to President Donald Trump, pleaded guilty to the charge of lying to the FBI about his contacts and conversations with Russians. Flynn admitted to violating the federal statute 18 USC Section 1001, which prohibits making \u201cfalse statements\u201d to government officials. As someone [&hellip;]<\/p>\n","protected":false},"author":44,"featured_media":10643,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[3649,479,672,3651,3407,3650,2887,1602,420],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/10642"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=10642"}],"version-history":[{"count":1,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/10642\/revisions"}],"predecessor-version":[{"id":10644,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/10642\/revisions\/10644"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/10643"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=10642"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=10642"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=10642"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}