OK, it's not 84 Charring Cross Road, but I'm enjoying it so far:

Hi,

I'd like to inquire about doing a sponsored blog post about our company on popehat.com – I can write the post for you if you'd like for $20. We sell engagement rings and diamond jewelry and have been in business since 1978 and I thought our products might be a good fit for your readers. Let me know if you'd be open to something like this!

Regards,

Jeff
Modern Design

Mr. Chan:

Thank you very much for your inquiry. We're always looking for posts on exciting new topics at Popehat.

I confess I'm not completely clear on your meaning. Are you offering to write a guest post about your jewelry products if I pay you $20, or to pay me $20 to run it? Because that makes a big difference. I'm sure you are a great writer, but If I pay you $20 I may not be able to afford my medication this week.

Also, do you sell any products other than engagement rings and diamond jewelry? I'm sure Popehat's readers would like to hear the economic insights of someone who has been in business since 1978, but I'm afraid the vast majority of them would have difficulty relating to engagement rings, jewelry, flowers, chocolates, small teddy bears with hearts, or other gifts traditionally given to spouses and girlfriends. Most of my readers have never known the touch of a woman, Mr. Chan. Do you offer any electronics, manga, anti-depressants, or hand lotions?

Very truly yours,

Ken
www.popehat.com

I'll let you know if he writes back.

They shot Americans for less.

They look down on all of us, in shame at what we've become.

Via

…and I thought it was Bashar al-Assad.

The best thing I have to say about the Huffington Post is this: they recently hired Radley Balko. That reflects either good judgment or very good luck. Balko's writing on criminal justice issues at Reason is indispensable for anyone interested in a vigorous critique of the excesses of the War on Drugs and the criminal justice system in general. Even though I'll be sorry to see Radley leave Reason, I think it's a good think that many more people will be exposed to his ideas. He's an excellent emissary for small-l libertarian thinking.

HuffPo does not always show such good judgment. And this time I'm not talking about their appalling taste in junk science. I'm talking about flip-flopping.

HuffPo recently announced that they had brought on Andrew Breitbart. Now, I'm generally not particularly impressed with Breitbart. But if HuffPo wants to encourage diversity of thought by bringing on a hard-line, vocal, and enthusiastic conservative, I don't have a problem with that.

Many people did. People decried HuffPo and said nasty things about Breitbart. HuffPo stood firm and said they value diversity of opinion.

At least for a day. Then they got their crystals all in a bunch and flip-flopped.

Today HuffPo announced they were pulling Breitbart from their front page, which is far more trafficked. Their excuse? That today the Daily Caller published an article showing that he said some nasty things about Van Jones.

But this morning, the Daily Caller published an interview with Breitbart in which he railed at Van Jones as a “commie punk” and a “cop killer-supporting, racist, demagogic freak.”

Here's the thing — I think that even people who like Breitbart would admit that such colorful language is not at all out of character for him. That's why some people like him — he throws elbows against people they don't like. That's his nature. HuffPo is acting like the river-swimming frog that complained to the scorpion. If they didn't know that Breitbart was like that, then they are both ignorant and sloppy. If they knew, but had a critical spine failure after a little blogosphere heat, then they're cowardly and rather pathetic.

It's embarrassing to realize that either (1) you don't know who the hell you decided to publish or (2) you didn't think through whether you had the nads to stand up to criticism of your hire. To be fair, Breitbart can hardly throw the first stone on that score. Anyone remember floridly nutty Dr. Kevin Pezzi,, whom Breitbart cheerfully front-paged and then later non-personed when everyone pointed out that he was a loon?

It's not a perfect comparison, though. Dr. Pezzi's nuttiness was somewhat obscure. One would actually have to Google him to discover it. By contrast, Breitbart is omnipresent in the media. Whether HuffPo didn't know that he talks like that, or knew but didn't weigh whether they were ready to stand by him, their volte-face is an embarrassment.

Update: Breitbart: "You think that's embarrassing yourself? Bullshit. THIS is embarrassing yourself."

Good news!

Your government has recently taken steps to make you safer.

Specifically, they have prevented a dangerous man from flying on the same planes as you and your family.

The man is a member of a famous militant organization, exquisitely trained to kill. He's part of a group riven by sectarian discord. And he's had close communications with an imam watched by the FBI.

Sort of.

The man is Abe Mashal. He's a 31-year-old dog trainer. He's an honorably discharged United States Marine.

And he's on the no-fly list because he wrote an email to an imam asking questions about raising children in an interfaith household. He's Muslim; his wife is Christian. And it turns out the FBI has been watching that imam.

FBI agents questioned him at Midway Airport, then at his home. Finally, he was summoned to a hotel in Schaumburg, where more FBI agents told him he’d been placed on the no-fly list because of an e-mail he had sent to an imam — a Muslim cleric — whom they’d been watching.

Mashal said he had sought the imam’s advice about raising children in a mixed-religion household. Mashal is Muslim; his wife is Christian.

He said the agents offered to get him off the list — if he would become an undercover informant at mosques. He refused and said he feels he was being blackmailed.

He hasn't been able to fly since last April.

I feel safer. Don't you? Sure, this looks like a Marine — someone who served this country — asking questions about raising his children with his Christian wife. But he asked an imam. Booga booga booga! Plus, the FBI is watching the imam. I'm sure they have perfectly good cause. Law enforcement never surveils people for the wrong reasons.

Now that the TSA has taken care of this danger, they can go back to groping kids and demanding unquestioning compliance.

Hat tip to Feral Genius.

Leaving for Korea for ten days in a week. Showing the older two kids their birth country, and attempting to stop third kid from creating international incident.

Any recommendations for must-see kid-friendly stuff in Seoul? We'll be staying near Insadong.

Let me tell you a story of a former client I'll call Jimmy Joe-Bob.

Jimmy Joe-Bob was a local politician of some ill repute. The DA and the cops had been gunning for him for years. Finally they came up with what they thought was a solid case against him.

DA investigators went to his house to serve the arrest warrant at 6 a.m. one Friday. (The DA and the cops favor Friday arrests because they can generally drag their heels and avoid bringing the defendant before a judge all day, thus ensuring that he stays in jail all weekend before getting bailed out). First, they tipped off a reporter from the Major Local Rag. But reporters don't like getting up that early. So when the reporter from the Major Local Rag showed up, cameraman in tow, the cops had already cuffed Jimmy Joe-Bob and put him in the back of their cruiser. The reporter protested. Where's my fucking perp-walk!

So the DA investigators pulled Jimmy Joe-Bob out of the back of their car and walked him back into his house. Then they turned around and perp-walked him back to the car so that the Major Local Rag's cameraman could get shots of him being led out of the house and put in the car. Major Local Rag ran those pics.

Major Local Rag did not report that the cops had staged a second perp walk for them. Major Local Rag would never do that. Major Local Rag doesn't report when cops break rules — including rules related to people's rights — to the benefit of Major Local Rag. That's typical. Rags have what they regard as a code of ethics — that even if someone broke the law to leak information to a Rag, then turned around and blamed someone else for that leak in a blatant attempt to obstruct justice, their help to the Rag is sacrosanct. Because otherwise the Rag wouldn't get leaks. Cops wouldn't stage perp walks so they could get good pictures.

I bring this up to explain why I am utterly unsurprised to learn that the media willingly participated in the appalling media circus described in Patrick's post earlier today. We expect journalists to be vigilant watchdogs over law enforcement abuses. They'll make a gesture now and then — when it makes a good headline.

But they'll dash past ten stories of police abuse to take advantage of one cop's leak about a politician, or athlete, or bimbo heiress in some petty scandal.

I suppose that explains why Maricopa County Sheriff Joe Arpaio chose to raid the home of Jesus Llovara, an unarmed animal cruelty suspect, using a tank.

And Steven Seagal.

Neighbor Debra Ross was so worried she called 911 and went outside where a nearby home had its windows blown out, was crawling with dozens of SWAT members in full gear, armored vehicles and a bomb robot.

“When the tank came in and pushed the wall over and you see what's in there, and all it is, is a bunch of chickens,” Ross said.

In other words, the taxpayers of Maricopa County paid thousands of dollars, Jesus Llovara and his neighbors were threatened with lethal force, and all Joe Arpaio got in return was chicken feed.

That and publicity:

[Llovara's defense attorney Robert] Campus said he believes the entire scene was basically a stage, to help actor Steven Seagal’s TV show, “Lawman.”

Seagal was riding in the tank.

No doubt because, although Llovara had only a misdemeanor record and owned no weapons, chickens are dangerous birds.

Of course, those who are concerned about animal cruelty can rest easy: All of Llovara's chickens were euthanized on the spot, thanks to Joe Arpaio and Steven Seagal.

On August 1, 1864, the British Empire, by far the world's greatest military power, had taken a stance of neutrality in the American Civil War.

The empire was led by Lord Palmerston, a statesman known for his caution in placing British interests ahead of his ideals. Despite Palmerston's feelings that Union forces were the aggressors, that the Americans fomented terrorism in Ireland, and that the American President Lincoln was a tyrant, the most Palmerston had been willing to concede to the Confederate States of America was recognition as a belligerent which might one day become a nation. Despite urging to enter the American war from the French emperor, Napoleon III, who hungered for glory and sought to distract his people from domestic scandal and, like Palmerston, sympathized with the Confederates, the most Palmerston had done was to send British troops to Canada when faced by an act of American piracy.

On August 1, 1864, Lincoln's forces, led by General William Tecumseh Sherman, whose name was shortly to become a byword for cruelty in war, all but surrounded the city of Atlanta. In one month Sherman would burn the city to the ground. Now, suppose Palmerston had reliable intelligence on Sherman's plans for Atlanta? In Palmerston's eyes, the Confederates had the just cause, and were fighting for freedom against an enemy of the British empire. With orders carried aboard a swift ship, the British could have intervened in the American war, attacking from Canada, preventing an atrocity and dealing a mortal blow to an enemy nation with which Britain had fought two wars.

In the end, Palmerston did nothing. The city of Atlanta was burned to ashes and the Confederates were ground under the heels of tyrants.

Should Palmerston have acted? And if he had, what would the consequences have been for the British empire and the world?

Are lies protected by the First Amendment, or are they not? Should they be?

That is one of the issues raised by United States v. Alvarez, a Ninth Circuit case testing the constitutionality of the Stolen Valor Act, which makes it a crime to claim falsely that one has been awarded certain military honors.

In August 2010, the Ninth Circuit reversed Mr. Alvarez' conviction under the Act, rejecting the government's attempt to create a new, broad First Amendment exception for false speech:

The Act therefore concerns us because of its potential for
setting a precedent whereby the government may proscribe
speech solely because it is a lie. While we agree with the dissent
that most knowingly false factual speech is unworthy of
constitutional protection and that, accordingly, many lies may
be made the subject of a criminal law without creating a constitutional
problem, we cannot adopt a rule as broad as the
government and dissent advocate without trampling on the
fundamental right to freedom of speech. See Jonathan D.
Varat, Deception and the First Amendment: A Central, Complex,
and Somewhat Curious Relationship, 53 UCLA L. Rev.
1107, 1109 (2006) (“[A]ccepting unlimited government
power to prohibit all deception in all circumstances would
invade our rights of free expression and belief to an intolerable
degree, including most notably—and however
counterintuitively—our rights to personal and political self
rule.”). Rather we hold that regulations of false factual speech
must, like other content-based speech restrictions, be subjected
to strict scrutiny unless the statute is narrowly crafted
to target the type of false factual speech previously held
proscribable because it is not protected by the First Amendment.

As I've argued before, the government and other professional censors are forever attempting to forge new categorical exceptions to the First Amendment — which exceptions they can then interpret broadly to achieve their ends. The Ninth Circuit's decision — which held that the government couldn't expand the already-existing categorical exceptions — was more important on that meta-level that it was on the level of this single Act.

Yesterday the Ninth Circuit denied rehearing en banc, with concurrences with and dissents from that decision. If you read any part of it, read the concurrence by Chief Judge Alex Kozinski. In my opinion Kozinski is the best writer I have encountered on the federal bench. Regrettably he's better known for other things. This concurrence is classic Kozinski: he mercilessly shreds the dissent's frightening view that the government ought to be able to penalize any lie, using both legal erudition and multi-layered wit. A sample:

Saints may always tell the truth, but for mortals living
means lying. We lie to protect our privacy (“No, I don’t live
around here”); to avoid hurt feelings (“Friday is my study
night”); to make others feel better (“Gee you’ve gotten skinny”);
to avoid recriminations (“I only lost $10 at poker”); to
prevent grief (“The doc says you’re getting better”); to maintain
domestic tranquility (“She’s just a friend”); to avoid
social stigma (“I just haven’t met the right woman”); for
career advancement (“I’m sooo lucky to have a smart boss
like you”); to avoid being lonely (“I love opera”); to eliminate
a rival (“He has a boyfriend”); to achieve an objective (“But
I love you so much”); to defeat an objective (“I’m allergic to
latex”); to make an exit (“It’s not you, it’s me”); to delay the
inevitable (“The check is in the mail”); to communicate displeasure
(“There’s nothing wrong”); to get someone off your
back (“I’ll call you about lunch”); to escape a nudnik (“My
mother’s on the other line”); to namedrop (“We go way
back”); to set up a surprise party (“I need help moving the
piano”); to buy time (“I’m on my way”); to keep up appearances
(“We’re not talking divorce”); to avoid taking out the
trash (“My back hurts”); to duck an obligation (“I’ve got a
headache”); to maintain a public image (“I go to church every
Sunday”); to make a point (“Ich bin ein Berliner”); to save
face (“I had too much to drink”); to humor (“Correct as usual,
King Friday”); to avoid embarrassment (“That wasn’t me”);
to curry favor (“I’ve read all your books”); to get a clerkship
(“You’re the greatest living jurist”); to save a dollar (“I gave
at the office”); or to maintain innocence (“There are eight tiny
reindeer on the rooftop”).

I've argued several times before Kozinski; it's every bit as bracing as you'd expect.

It's time for the Road to Popehat, the feature in which we check out the traffic logs, see what Google searches you used to get here, and wonder if you're all playing a gigantic joke on us.

Our visitors are not mere idle surfers, but searchers on a quest.

What are they questing for? It varies.

They come here looking for answers to canonical questions regarding the great literary works of our age . . . .

colonel klink resistance is futile
has anyone killed more people than khan

. . . regarding music . . .

bagpipe devil's instrument

. . . and about other matters of high culture.

monkeys that try to guess what you draw

The come seeking legal advice . . .

can inappropriate touching from a parent not be molestation

. . . for referrals to reasonably priced legal services . . .

shitty colorado lawyers

. . . and for employment advice when they are particularly desperate for a job — ANY job — no matter how demeaning or vile.

how to become a member of the California assembly

They seek us in an effort to take control of their education . . .

when asking a professor a question what I should ask

. . . and their fashion choices.

will bra padding be picked up in an airport scanner

They come for advice about how to be a man . . .

how to be like Clint Eastwood

. . . . . and how to navigate the bleak dating scene as a woman.

when a man won't give you his last name

Some come looking for alarming forms of sexual gratification . . . .

ass pichers
gay furry scat

. . . as well as for fetishes that are . . . strangely alluring.

naked pizza groping

They come seeking information about modern political issues . . .

are the jews control washington
jews in the homo agenda
weird things happen when you talk about the illuminati

. . . for guidance on how to engage in the political process . . .

to whom can I complain about Obama

. . . and for answers to the most profound philosophical questions that face our society.

why sarcasm?

Finally, they come here to ask "who are you, Popehat writers?"

social awkwardness site:popehat.com
slutty popehat

I hope they all found what they were looking for. Except for the furry scat guy.

The other day I reminded people of my favorite advice: just shut up.

A scraper named "J. Croft" came along and lifted the whole damn thing. He attributed it — by blog name, author name, and link — but he still bodily copied the whole post, rather than posting an excerpt.

I offered what I viewed as a rather mildly worded request at his site:

Pardon me, but copying the entire blog post and reposting it here is not fair use. Feel free to quote, but this is a copyright violation.

A few other commenters there agreed. Did J. Croft take it well? J. Croft did not. Here's what he has to say:

Wow I'm just feeling that Patriot Unity here….

Ken, you have good advice but you're not the only person who has thought of shutting the hell up around the enemy. You just put it in different words is all. I quote full articles all the time and you are the FIRST to get their panties in a wad over it. Get over yourself, you're not Shakespeare.

Trust me Ken, I will NOT be quoting your douchebag ass again. Hang up your website and go back to watching American Idol or jacking off to child porn or taking turns fucking your mother or dog or whatever it is you do.

And as for Tomas-where's YOUR work? But I suppose having nothing's better than Joel Katz's lame ass excuse for a blog: "look at me I got four posts up so I kan rip on a Patriot trying to spread a good article! Hilk!"

God in Heaven you little bitch patriots, you keyboard minutemen are so fucking lame. I got zero-count em'-ZERO patience with you backstabbing little fucks. It's punks like y'all that blindly support Ron Paul as he embezzles you, expecting that putz on a white horse to solve all your problems. Meanwhile you kick back, write a few words or trade articles (NOT PASSING THEM ON IN FULL-GOD FORBID ANYONE DO THAT!)

Ansley knows what I'm talking about;)

I've been up in this since 2005-look to your right at my article index. You little snitch bitches got something to say to that, I'm right here.

Well, J.Croft, the beauty of your modern picture-in-picture TVs is that I can watch American Idol and child porn at the same time while giving the dog a reach-around.

Is it just me, or is J.Croft wound just a little bit tight? Normally I'd have to go to the World of Warcraft forums and advocate nerfing paladins to draw that level of socially dysfunctional sputtering outrage and odd entitlement.

Eh, revolutions have been funded by a motley array of malfeasance before. If J.Croft aims to resist the black helicopters of the New World Order by scraping and thieving, I'd guess he's not alone.

When UCLA student Alexandra Wallace posted her moronic anti-Asian rant to YouTube, she felt compelled to preface it with an increasingly standard disclaimer

So we know that I'm not the most politically correct person so don't take this offensively. I don't mean it toward any of my friends I mean it toward random people that I don't even know in the library. So, you guys are not the problem.

All the modern "I can say whatever I want, and you're unreasonable to object" tropes are there — the meretricious invocation of "political correctness" (meant to imply that anyone who objects to what follows is a censorious ideologue), the whiff of "oh, I don't think of YOU as being Asian," and the request that listeners not take offense, invoked as if it changed the meaning and natural tendency of what followed.

Wallace then proceeded to vent, to the best of her bubble-headed ability, her spleen against UCLA students of Asian descent. The shit hit the fan. UCLA — acting correctly — said it would not discipline her for bigoted speech spewed onto the internet, but the tide of infamy has led her to flee.

Allow me a sweeping generalization: nobody ever said anything worthwhile after beginning "I know this isn't politically correct, but . . ." or "I'm not racist, but" or "I have nothing against gays/blacks/Asians/Muslims/whatever, but . . . ." It's not because there's never been a worthwhile statement that could be construed — or misconstrued — as politically incorrect or bigoted. It's because if the speaker had anything worthwhile to say, they wouldn't feel the urge to preface it with an unconvincing disclaimer. They'd say what they had to say, let it rise or fall on its own merits, and accept the consequences, like a grown-up.

Starting out with "you know I'm not politically correct" or "I know this isn't politically correct" or "Not to sound like a racist or anything, but . . ." is a form of special pleading, and a sign of moral and intellectual weakness. Its a request that the listener exempt the following statement from the listener reaction that naturally and probably follows it. It's shorthand — the long form is "Look, I'm not prepared — or perhaps not capable — of presenting a cogent argument about why it's not reasonable for you to take offense at what I'm about to say. And I sure don't have the stones to assert that it doesn't matter whether you are offended or not. So, could you please let me off the hook on what I'm about to say? Please?" It shows an urge to genuflect towards listener sensibilities, but an unwillingness or inability to confront them or defy them. Statements like "I know this isn't politically correct" also have more than a whiff of bootstrapping — of the suggesting that a sentiment has inherent merit because it is offensive to someone. That might wash with simple-minded folks like Bill Maher, but most of us can recognize it as bullshit.

Alexandra Wallace might as well have launched her rant by saying, "Look, I'm a ditz and an asshole. So it would be totally uncool for anyone to react badly when I act like a ditz and an asshole."

There's a flip side to this, though. There's also pressure to genuflect towards sensibilities when we discuss behavior like Wallace's. A discussion of whether or not the First Amendment permits UCLA to discipline Wallace for her speech does not and should not require a ritualistic denunciation of Wallace's behavior. People who find overtly hostile sweeping generalizations about Asians will recognize her rant as offensive whether or not a writer tells them to. People who don't find it offensive still won't even if they encounter a First Amendment analysis suggesting that they should. A demand that any discussion include a sufficient critique of racism infantalizes readers and encourages the worst right-wing stereotypes of academia. Moreover, it erodes civic literacy. A First Amendment analysis ought to be judged on its legal merits, not on its ideological compliance.

You'd think that's obvious. It's not. Blogger Angus Johnston at the blog Student Activism criticized FIRE for failing to condemn Wallace sufficiently in analyzing the First Amendment implications of her speech. In fact, by his title, Johnston suggests that a failure to condemn speech sufficiently is the equivalent of defending the content of the speech, as opposed to the right to utter the speech. Moreover:

Alexandra Wallace’s speech was detestable. If you’re going to defend it on principle, there’s no reason not to admit that.

Well, there is a reason, actually. Whether speech is "detestable" is not pertinent to the question of whether it is protected. If a writer is moved to condemn offensive speech (or ridicule the speaker, which is more our style here), there's nothing wrong with it. But measuring the value of free speech analysis by the extent to which it condemns the speakers and soothes those offended is a distraction — and more than faintly insulting to the offended besides.

In a follow-up, Johnston argues that FIRE downplays and misrepresents the offensive nature of speech it defends:

Again, I respect FIRE’s principles as articulated. I can accept their belief that the work they do requires them to do no more than “present … all the evidence that we have about the expression in question in order to help people make up their minds for themselves.” But that’s not how Shibley approached the Wallace case, and it’s not how FIRE addressed the two previous cases I’ve highlighted. In each of these three cases, representatives of FIRE offered partial and incomplete descriptions of presumptively racist and/or sexist speech, with their omissions serving to create the impression that the speech was less obnoxious than it actually was. And in each of these three cases those same representatives offered editorial defenses of that speech on content-based rather than civil libertarian grounds.

Yet, quite significantly, Johnston utterly fails to explain how FIRE's alleged omissions or distortions were material. That is, Johnson fails to explain how, if FIRE had described the racist speech more vividly, it should have changed FIRE's First Amendment analysis or conclusions. No, what Johnston is talking about is ideological compliance — the notion that there ought not be any discussion of racist speech without a full exposition of the speech and a painstaking denunciation, even if the full details are not relevant to the First Amendment analysis.

That's genuflection. It's no more persuasive that Alexandra Wallace's genuflection. If FIRE engaged in ritual denunciation because it felt that it was expected to do so, then they would be, like Wallace, undermining themselves with a form of cowardice — they would be conveying the message that a discussion of free speech stands not on its legal and civic merits but on its ideological compliance.

Fortunately, FIRE doesn't roll that way. Neither should we.

NPR has a story on the life and death of Soviet cosmonaut Vladimir Komarov. It's a harrowing tale of bravery, sacrifice, friendship, and the maddeningly indifferent and inexorable brutality of totalitarian government. Check it out.

Imagine this:

It's a dark and gloomy six in the morning. You've just gotten out of bed. You are fuzzy-headed, bleary-eyed, badly in need of coffee. You haven't showered or dressed. You're in your underwear, or pajamas.

Suddenly there's a thunderous pounding on the door, and loud men are shouting something at you. Your heart lurches and the adrenaline jolts you. You open the door, and there is a team of FBI agents, guns prominently displayed in holsters, raid jackets open. They are large and aggressive and unfriendly. They tell you they have a search warrant for your home and push past you. Two of them grab you, bodily turn you around, and handcuff you. They'll say later they had to do that to secure the scene and assure agent safety, and that you totally weren't in custody or anything.

Two agents take you outside to your driveway in your pajamas or underwear. At this point your neighbors are beginning to peek curiously out of their windows. The agents push you into the back seat of a G-ride — a late-model American made sedan that smells of air freshener and despair. The two agents sit on either side of you in the back seat; a third agent climbs into the front seat. You shift uncomfortably, trying to avoid sitting on your handcuffed hands. But there's no way to get comfortable sitting in your underwear in the back of a G-ride with your hands cuffed behind you.

The agents begin to question you about your business dealings. They don't read you your rights first — they'll say later they didn't have to, because you totally weren't in custody, despite being handcuffed in the back of a G-ride in your underwear surrounded by FBI agents in raid jackets. The agents tag-team you, switch topics rapidly, play good-cop-bad-cop, and use every law enforcement rhetorical trick to intimidate you. We have some really serious questions here, they say. But if you just cooperate, maybe we can clear all of this up.

They start to ask questions about a meeting that took place two years ago. Were you at that meeting with Mr. Smith and Mr. Jones? You say no, no I wasn't. Maybe you say it without thinking, agitated and confused and muddle-headed from the circumstances. Maybe you don't have a clear memory of what happened two years ago. Maybe you panic and lie. The agents move on in their questioning.

After a few uncomfortable hours, the agents uncuff you, pull you out of the car, and hand you an incomplete, inaccurate, and illegible receipt purporting to state what they've taken. They haul off boxes of documents, disks, disk drives, and whatever else catches their fancy. They'll see you soon, they say.

And, relatively speaking, they do. Six months later you are indicted. You're indicted not only for whatever matter the FBI was investigating. As a kicker, you're also indicted under 18 U.S.C. section 1001 for lying to the FBI. That's a felony. Your lawyer reviews the discovery, and tells you that when the FBI agents asked you whether you were at that meeting two years ago with Mr. Smith and Mr. Jones, they already knew the answer to the question. Mr. Jones recorded the meeting and is cooperating with the FBI, and they had two other witnesses who placed you there. There was no chance whatsoever that your denial — whether it was a panic-induced brain fart, or a failure of memory, or a lie — could have misled or deterred the FBI in its investigation for even a moment. But that doesn't matter. Though materiality is an element of Section 1001, it's a weak, diluted type of materiality. Statements to the government are deemed material if they are the sort of statements that have the capacity to influence it. Courts have come very close to creating a presumption of materiality by reasoning that if the information were not material the government would not have asked for it and you wouldn't have offered it. There was a time when most prosecutors thought it was chickenshit to charge someone with a felony for an exculpatory denial of wrongdoing that never fooled anyone; that time is in the past.

So. By failing to shut the fuck up, you have just handed the feds a gimme felony charge that will make your case much more difficult to defend.

When the authorities ask you questions, they are not out to "clear this thing up so we can let you go." They are not your friends. They do not want to help. They are very likely not trying to learn anything or discover anything. They are trying to make, or improve, a case against you. They are hoping that you will fall into their trap. They may be trying to make a weak case strong or turn a lesser charge into a greater one.

Is there ever a situation where, by being friendly and cooperative and answering questions, you can deflect government suspicion or satisfy their concerns without charges? Yes. Very rarely, there is. And when the government comes knocking, they count on you grasping at the hope that this is one of those times. Don't be a fool. If there's a chance that cooperation will satisfy the authorities today, there will still be a chance in a day or a week or a month after you've consulted a lawyer who understands the situation. When you answer law enforcements' questions — especially when you do it in a stressful situation like a search — you take grave risks of substantially worsening your situation. You may say, "oh, but I won't lie." Sure. But can you be sure, sitting cuffed in your underwear at six in the morning in that G-ride, that you will remember events from years ago accurately? Are you sure you won't be confused and muddled under the circumstances? Are you sure that the government won't — fueled by claims by cooperators — believe that you've lied? Do you really think that if you misremember or mix up events in your head or if your memory is different than the story of a cooperator, that the government is going to give you the benefit of the doubt?

Don't be a fool. Invoke. For God's sake, just shut up.