18 U.S.C. § 1001: Why Lying to Federal Agents Is a Crime.

Martha Stewart was investigated for insider trading, but what she was mainly convicted of was lying to federal investigators. Not lying in front of a jury. Not lying under oath. But rather lying to the feds. So too with George Papadopoulos, the former member of Trump’s campaign, who pleaded guilty to making a false statement, or lying, to the FBI.

Defense lawyers call that crime “one thousand and one”. Here is a quick summary. Now comes the more useful bit. Some warnings.

A Crime if You Lie About a Material Fact

Section 1001(a) says it’s a crime if you lie about a material fact under any part of the US govt (executive, legislative, judicial). You have to do it knowingly and willfully. There are three kinds of lies:

• conceal a material fact, by trick, scheme, or device;
• make a materially false statement;
• use a document that you know has material falsehoods.

The wording is very broad. Read it, and almost everything is covered.

Perjury is when you lie under oath. When you are a witness in a trial, you are put under oath so that if you do lie, the lie counts as perjury. “Do you solemnly swear or affirm that the testimony you will give….” “Yes,” you’ll say. “I so swear” or “I do affirm.” That’s your oath. Without perjury, the oath is meaningless.

What section 1001 does is not the same. You are not sworn in. You don’t have to take an oath before you answer questions from investigators. You could be just asked a question by an agent. Two friendly F.B.I. agents stroll up and have a few casual questions. You’re just chatting. You say, “No, I don’t know him.” That’s not even true. It’s small. But it could be a section 1001 crime. And the fact that the agent didn’t put you under oath and warn you that this lying is a crime doesn’t matter.

It’s not only the agents. The fact that it is lying to the feds is not written in there anywhere. Even the lawyer your company hires to do an internal investigation can count, in some federal districts.

Say you are a billing specialist at a medical clinic. Your supervisor, a friend, inflates Medicare bills, and you know about it. The company hires a lawyer to do an internal investigation to see if Medicare was cheated. He speaks to you over the phone. There is no oath. No warning. He asks, “Do you know of any way Medicare was cheated?” “No”, you say. But your texts on the company phone with your friend (your supervisor) tell the truth. The company hands it all over to the feds for cooperation credit. You are charged with lying to the feds under section 1001. This can happen.

Small Fish

You’re not too small to matter. Even if you think of yourself as a small fish, it doesn’t mean the feds won’t think that you have material knowledge. You still might find yourself in a situation where the feds want you to do stuff for them. Like, I dunno, wear a wire. Or sit for an interview. A prosecutor can threaten a section 1001 prosecution to pressure you into agreeing to a deal. To do what they need you to do. Sometimes it works. Take George Papadopoulos. Before his guilty plea, he was just a small, wee, little campaign aide who nobody ever heard of. Not really a player. So why was he charged with lying to the feds under section 1001? Most likely because they needed him to do stuff.

Your Lie, Not the Underlying Conduct

”But I did not do anything wrong”, you may say. True. It’s true. But that’s no defense if what you did is lie to the feds. A crime like lying to the feds does not mean you did anything wrong. It only means that you lied to the feds about it. That’s the crime. Stewart and Papadopoulos were investigated for other things. But they weren’t charged with those crimes. They were charged with lying to the federal government. Maybe you lie to protect someone else. Maybe it is your lie that is the crime. Your lie, not the underlying conduct. There are all kinds of nuances, and each case is different. Justice Ginsburg wrote of “extraordinary authority” of the prosecutors under section 1001, which can reach very informal talks with agents. You are not safe just because you are not a player. Or because you did not do anything wrong. Or because you told a little teeny weeny fib. Or because you were not put under oath. Or because you were not warned that the little fib would be a crime. Whether it is at F.B.I. headquarters, or an interrogation room, or an apartment building where you get a knock on the door, once you start speaking with the feds, you’re playing the game. You are.