Never Say Nothin’ to the G

So, Scooter Libby has been convicted for his involvement in the Valerie Plame affair, in which Ms. Plame’s identity as a covert CIA operative was revealed. Let’s see what they got him for:

The jury rejected Mr. Libby’s claims of memory lapses, convicting him of four felony counts, obstruction of justice, giving false statements to the Federal Bureau of Investigation and committing perjury twice before the grand jury. The 11-member jury acquitted Mr. Libby on an additional count of making false statements to the F.B.I.

Notice what’s missing? Valerie Plame. Libby was never convicted of actually revealing Valerie Plame’s identity. In fact, it wasn’t even one of the charges before the jury.

This isn’t the first time we’ve seen this pattern: Something similar happened to Martha Stewart. While being investigated for insider trading, Stewart lied to the FBI about something. She was never convicted of insider trading, but they got her for telling the lie.

I assume that in both cases the court reached the legally correct conclusion, but it still feels like an injustice. In essence, Libby and Stewart were both convicted of trying to cover up a crime even though the underlying crime could not be proven.

That seems like cheating.

Yes, lying to the police can mislead an investigation and waste police time, but I have a couple of responses to that. First, interrogating a suspect who’s not guilty is already a waste of time, and not just the police’s time but also the suspect’s time. Second, the punishment for lying to federal agents is pretty severe (up to five years in prison, I think) which means that lying can get you in as much trouble as many of the crimes they’re investigating. Again, the punishment applies even if they can’t prove the underlying crime.

(In Libby’s case, I understand that some of his lies were to a grand jury while under oath. That’s a different matter. I’m just discussing his lies to investigators.)

People like Scooter Libby and Martha Stewart are merely the most famous recent cases, but the feds have done this to a lot of other people.

One of the most frightening things about this kind of prosecution is that a mistake can look just like a lie from the outside. That was Libby’s defense, and although the jury didn’t believe it in this case, it’s certainly plausible in general. What’s even scarier is that it doesn’t have to be the defendant who makes the mistake. If the FBI agents misunderstand a statement or take poor notes, you could find yourself accused of lying even if you told them the truth.

I’ve heard accusations that the FBI uses this kind of prosecution to get around the rules against entrapment. Let’s say you’re a real estate developer, and one of the local building inspectors tells you that he’ll hold up your permits unless you pay him $1000. You decide to pay him. If he’s an informant for the FBI, they probably can’t prosecute you for bribery because they created the crime by coercing you with the threat of holding up your permits.

Now suppose instead that shortly after you pay the bribe a pair of FBI agents show up to ask you a few questions, and one of the questions is “Have you ever bribed a building inspector?”

Startled and a little frightened, you blurt out “No.”

That’s it. They’ve got you for obstruction, all because you denied it when they accused you of a crime.

So, if you’ll get in trouble for confessing the crime, and you’ll get in trouble for denying the crime, what the heck are you supposed to do? You have the right to remain silent.

Even if you haven’t committed any crimes, that seems like a good idea with the feds. When you’re dealing with people who can put you in jail for the things that you say, it’s best never to say anything.

I’m not a lawyer, so don’t take any of this as legal advice, but I think I can safely advise you to talk to a lawyer before talking to the feds. That seems like a sound idea.

If the feds ever come calling on me, I hope I can take my own advice.