“When Justice Ginsburg reviewed his case, her concurring opinion warned that the federal false statements statute arms government agents with authority to generate felonies.”
Can law enforcement manufacture crimes against citizens? That question centrally occupied Justice Ruth Bader Ginsburg in a case, Brogan v. United States (1998), where a union officer was questioned by Labor Department and tax agents. The union official was interrogated about his dealings with a real estate company. As a result of his response, he was charged and convicted of making a false statement to federal agents. When Justice Ginsburg reviewed his case, her concurring opinion warned that the federal false statements statute arms government agents with authority to generate felonies. She referenced informal encounters between agents and their targets resulting in felony convictions. She noted that authorities have resorted to such process crimes when they are unable to prove an underlying substantive offense. In view of current developments in Washington, it is highly relevant to revisit the concerns and dangers exposed by the Ginsburg opinion.
How did it happen that the federal statute became a potentially powerful “generator of crime” as she put it? The law was enacted during the Civil War. It began as an appropriately narrow measure which criminalized written claims for money or property containing false billings. It was designed to protect against bilking the government. Seventy years later it was broadly expanded during the New Deal to proscribe oral statements, including responses to government interrogation.
This expansion caught the eye of Justice Ginsburg. She wrote her opinion “to call attention to the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes.” Famous defendants like Martha Stewart and Scooter Libby would likely agree with Justice Ginsburg’s concerns. They both felt the sting of current federal law. The whole subject has been awakened afresh in 2018 with the wave of prosecutions against supporters of President Trump.
Renewed attention will be directed to the false statements law during 2019 trials and appeals of Trump associates caught up in the web of prosecutions. These events will certainly raise questions about the fairness of the federal statute. Should it be revised?
Before she wrapped up, Justice Ginsburg made a plea for reform. Ideas abound. The statute could be returned to its original format, limited to false statements incorporated in written claims for Government money. Another change might be to limit the felony form of these prosecutions to under-oath statements. Professor Alan Dershowitz has suggested a distinction between sworn and unsworn responses to interrogators. At the very least, congressional attention to the current criminalizing of unsworn oral statements seems appropriate at this moment in history.
Ron Carlson serves as Fuller E. Callaway Chair of Law Emeritus of the University of the Georgia School of Law and is the author of seventeen (17) books on evidence, trial practice, and criminal procedure. His coauthored treatise, Carlson on Evidence (with M. Carlson), has been cited authoritatively in 40 separate appellate decisions. The views expressed above are those of Professor Carlson’s own and are not those of the University of the Georgia.