As Blagojevich Might Say, Just Shut the Fuck Up

Law, Law Practice

Patrick already noted that the Blagojevich prosecution suffered an embarrassing reversal today. His take is entirely sensible. I write further only to point out what the verdict — a mistrial on 23 counts, and a guilty verdict on one count of lying to the FBI — says about criminal defense and dealing with the government.

The jury found Blagojevich guilty on Count 24 of the indictment. That count charged him with violating 18 U.S.C. section 1001 by falsely stating to the FBI, during his interviews in the course of the investigation, that he kept a "firewall" between his political activities and his official government activities, and that he did not keep track of who donated to him.

Those assertions were, of course, bullshit. More to the point, they were utterly obvious bullshit. There is no chance whatsoever that Blagojevich's patently ludicrous and self-serving boasts about his rectitude could have delayed or deterred the FBI for a nanosecond. Regrettably, when it comes to Section 1001, that's not the point. The question, in determining whether a lie to a government investigator violated section 1001 is not whether it actually obstructed or influenced the investigation, but whether it was possible that a statement of that kind would influence the investigation. That's such a loose and easy standard that almost any statement related to the subject matter of an investigation will satisfy the element.

Hence federal investigators frequently use 1001 to strengthen otherwise weak cases. They carefully build their proof about all the issues in the case, convince some credulous target and his foolhardy lawyer to talk, and then hope that the target will lie about some detail — or at least make some claim that a jury will believe is untrue. As I've mentioned before, the feds can even use this trick to convert a misdemeanor investigation into a felony investigation, and can certainly transform a losing case into a conviction. Just ask Martha Stewart (who was never indicted on the issues for which she was investigated). Or Rod Blagojevich, who now stands convicted for stupid lies that the FBI didn't believe for a hot second.

People talk to the FBI because they hope that they will be able to convince the FBI that they've done nothing wrong. Lawyers let their clients talk to the FBI because their clients (who are terrified of being charged) want to do so, and the lawyer does not want the client to freak out and blame the lawyer if he takes the Fifth and get charged. But the FBI is not interviewing you to help you. The FBI is not interviewing you with anything approaching an open mind about whether you have committed a crime. The FBI is hoping that you will say something that will help them prove up their case, and that if you don't, you will at least tell some marginal lie that they can charge you for. Just ask the Zasi family. The FBI interview is merely a out-of-court version of a perjury trap.

Some lawyers will argue that they have to walk their client in despite all this, because being charged would be a career death penalty, and they have nothing to lose. But clients will grasp the concept of "nothing to lose" quite differently when they're looking at an actual criminal conviction. Suddenly, the prospect of being disgraced and fired or impeached, but not convicted, will not sound nearly as bad as it did compared to a felony conviction and a stretch in federal prison. Besides, to be indelicate, anyone who occupies so high a position that they have "nothing to lose" in this sense is very likely to be a narcissistic freak. Narcissistic freaks are notoriously unreliable clients and make awful, awful interview subjects. Anyone who listens to Martha Stewart or Rod Blagojevich for thirty seconds will realize that they are highly likely to shit the bed in some spectacular way or other during an interview with the government. Like the scorpion of the fable, it is their nature. Walking them anyway suggests high idiocy or low client control.

Remember Rule One: just shut up.

Last 5 posts by Ken White

14 Comments

14 Comments

  1. Scott Jacobs  •  Aug 17, 2010 @9:39 pm

    However, in Roddy's case, it was a blatant lie. He knew he was lying when he said it.

    I know why you harp on this issue, and I agree. But in this case, the idiot had this conviction coming.

  2. Linus  •  Aug 18, 2010 @4:45 am

    I may have told this story before, but I have a client that called me a couple of weeks after I'd read Ken's original Just Shut Up post, and she and I had the exact conversation from Ken's post, and I pleaded (pled? whatever) with her, do NOT talk to them. "But they say they'll just charge me if I get an attorney." Well, that means they are going to charge you regardless, so talking to them without me will only make things worse. Anyway, she did not take my advice, talked to them, and then moved on to another attorney.

    She was sentenced recently to 3 years, with most of it suspended (luckily). It just makes you weep. But I thank you, Ken, for explaining very clearly (which helped me, as a young attorney, explain clearly) why you need to shut up when the cops are asking questions.

    Honestly, it's ruined my enjoyment of the show Castle a little bit, because I'm always thinking "don't these numbnuts know they don't have to talk? That guy's an attorney, for fuck's sake!" And, whaddayaknow, they say something that *oops* incriminates them. Shit.

  3. Scooter Libby  •  Aug 18, 2010 @10:47 am

    True that.

  4. Jack Marshall  •  Aug 18, 2010 @12:08 pm

    So, Ken, your theory is that what should matter is whether a lie actually works or not. Interesting. So a really obvious lie that still fools a dim-witted investigator is a legitimate crime, but a well-crafted lie, that was intended to deceive and impede an investigation, but that is ineffective because the investigator ferrets it out, shouldn't be an offense.

    I think sometimes the "law enforcement is oppressive and unfair" mindset leads one into dead-end alleys, and this is an example.

  5. Grandy  •  Aug 18, 2010 @1:32 pm

    Hmmmm, I took from it that society doesn't benefit when the Government pulls shit out of its ass to convinct someone, even if that person is the Blagojevich.

    Also that "shut the fuck up" is the proper course of action when the feds come a calling, because they'll engage in a series of absurd tactics so they have extra ammo to prosecute you if they can't do it any other way.

    It's entirely possible I'm inventing the meaning of that post out of thin air, though. Too many brownies from the "law enforcement is oppressive and unfair" bake sale, perhaps.

  6. Ian Argent  •  Aug 18, 2010 @5:20 pm

    "Am I being detained? Am I free to go?"
    "Talk to my lawyer."
    "I intend to remain silent."

    That's really about it.

  7. Scooter Libby  •  Aug 18, 2010 @7:29 pm

    Ian Argent,

    "That's really about it."

    I'm not a lawyer, but it seems to me that you could add one more: "I do not surrender my rights under the Fourth Amendment. I do not consent to a search, nor do I offer you warrantless entry to my home." Maybe the lawyers can improve on that one, but close enough.

  8. Scooter Libby  •  Aug 18, 2010 @7:30 pm

    Or maybe just, "No, you can't come in."

  9. Ken  •  Aug 18, 2010 @8:03 pm

    So, Ken, your theory is that what should matter is whether a lie actually works or not. Interesting. So a really obvious lie that still fools a dim-witted investigator is a legitimate crime, but a well-crafted lie, that was intended to deceive and impede an investigation, but that is ineffective because the investigator ferrets it out, shouldn’t be an offense.

    I think sometimes the “law enforcement is oppressive and unfair” mindset leads one into dead-end alleys, and this is an example.

    It's interesting and revealing, Jack, that in a discussion that touches upon the pervasive dishonesty of law enforcement tactics during questioning of suspects, you choose to focus upon criticisms of over-criminalization of suspects' lies, rather than on the ethical dimensions of lying by law enforcement. If I search your blog, will I find any discussion of the ethical significance of the fact that in nearly every U.S. jurisdiction, law enforcement may obtain a statement from a suspect through outright lies, and the resulting statement will be admissible? Do you have an opinion on the ethics of perjury traps? Do you have an opinion on the ethics of law enforcement suggesting that an interview will "clear this up," when in fact their sole goal is to get a confession or a false statement they can bootstrap into a felony?

    Certainly throughout the centuries various thinkers have posed ethical dilemmas about lying — like the classic "is it ethical and permissible to lie to a killer who asks you where to find his intended victim." Those are not my concern. I'm concerned about (1) describing why it is foolish to talk to the authorities, who are not bound by any ethical truth-telling requirement and who do not have your best interests in mind, and (2) why criminalizing every instance of dishonesty is abusive, totalitarian, and frankly chickenshit.

    Do you believe that that which is dishonest or unethical should necessarily be criminalized, Jack?

    Given your approach, Jack, I suspect you will find "interesting" and (to you) appalling views about the ethics of dealing with the state at the blogs of most defense practitioners. We're people of notoriously low morals. Some of us even openly advocate practical jokes.

  10. Scott Jacobs  •  Aug 18, 2010 @8:30 pm

    Ken, I think the issue is that this wasn't a mistaken recollection that the prosecutions TREATS as a lie in order to get a slam-dunk 5-year minimum at trial. It was a blatant, are-you-shitting-me-you-really-wanna-say-that lie. He knew it was untrue before he said it, as he said it, and after he said it. That it didn't fool anyone doesn't get him any points, it just makes him a shitty liar.

    You appeared to base your disagreement on this on the fact that no one with more than 3 working brain cells (I go that low so as to get most law enforcement in the grouping) bought the lie for even a moment. That suggested – depending on the way you read the post – that you don't think bad lies should be prosecuted, only effective lies.

    I know that you were only segueing into your greater point of "This is a bullshit law that is abused constantly, and for no real gain to society", but the way it came across in the post could have carried a different message.

  11. Ken  •  Aug 18, 2010 @8:36 pm

    Okay. Then yes, to be more explicit: whether or not lying to the cops when confronted by them is ethical, I don't think that lies that don't actually obstruct should be criminalized, because of the power it conveys to the state. And I don't think that "this is unethical" should translate to "this should be criminal."

  12. Scott Jacobs  •  Aug 18, 2010 @11:06 pm

    How about lies you HOPE obstruct, but don't because you're a shitty liar, and a complete moron to boot?

    I mean, I'm willing to bet that Ex-Govenor Idiot McDumbfuck was certainly HOPING his statement would make it hard on the cops… That it didn't shouldn't matter.

    To me, it is the intent to effectively lie that is more important than how effective the lie was.

  13. TomH  •  Aug 19, 2010 @5:46 am

    IMHO Scott's introduction of mens rea is a good synthesis between "any lie is a crime" and "only good lies are a crime." It appears to take into account both effective lies to smart cops and lousy lies to stupid cops. It also promotes truthtelling which is something of an ethical preference. It also gives prosecutors something to really prove, state of mind.

    Not to say you should ever violate rule no. 1 STFU.

    Btw I just realized I have not read 1001does it have a "willfully" or "knowigly" requirement?

  14. Ian Argent  •  Aug 19, 2010 @6:22 am

    Yeah – "I do not consent" should be added to the citizen cop phrasebook.