Author: Attorney Marcus Berghahn
We advise our clients to not speak with law enforcement without first seeking the advice of counsel. Because when speaking with law enforcement you have two choices: tell the truth or say nothing at all. Anything short of the truth—even when law enforcement knows the statement to not be true—is a crime. But telling the truth may not be preferable, because the truth may implicate you in a crime, whether you know it or not. And, more important: law enforcement, when speaking with you, can lie to you. Silence, or the invoking of your right to counsel, is the best course of action. If, after you speak with counsel, you still wish to speak with law enforcement, that’s fine. But you need to first fully understand what your rights are and whether (and how) your statements could put you in legal jeopardy. Setting aside the legal analysis used by the Attorney General to dismiss the case, the tale of Michael Flynn is a good example of why that advice should be heeded.
In broad strokes, the background on the Flynn case is this: Michael Flynn, for a short time, was President Trump’s National Security Advisor. He spent his career in government and had regular interactions with law enforcement as part of his job. He resigned after it appeared that he lied to the Vice President about communications with the Russian Ambassador to the United States. A criminal investigation related to Flynn’s contacts with the Russian Ambassador lead to him pleading guilty in federal court to “willfully and knowingly” making “false, fictitious and fraudulent statements” to the FBI. Before he was to be sentenced, Flynn moved to withdraw his guilty plea alleging that, essentially, the FBI tricked him into making a false statement. This, despite the fact that, at the guilty plea hearing, Flynn essentially told the Court (under oath) that the FBI had neither pressured nor tricked him into making a false statement. He now points to internal FBI notes that show that, when agents planned their interview with Flynn, they knew he would either admit to a crime, or lie; and one aspect of their interview was to see whether they could get him to lie (even though this would not interfere with their investigation). It appears that, despite his background, training and familiarity with law enforcement, he did lie to them. On its face, this seems outrageous to some and, as some argue, merits dismissal of the criminal case.
Law enforcement routinely interviews people hoping they will confess (and get prosecuted) or lie (and get prosecuted). That’s often part of the planning that occurs in advance of an interview. Courts have blessed this approach for years. That’s because the relevant federal statute (18 U.S. Code § 1001) requires proof of materiality as an element. Here’s how that works: To be a violation of the federal statute, a false statement has to be material. That doesn’t mean the false statement does, in fact, fool law enforcement, mislead them, or waste their time. In the context of the federal statute, the government need only prove that it’s the sort of false statement that could, hypothetically, influence their decision-making. That means that law enforcement can have irrefutable evidence of a fact and interview a person and, during the interview, ask whether a fact (they know to be false) is true. The subject of the interview will either inculpate himself (thereby making the government’s case) or he will make a false statement—a lie (hindering the government, or not, but it’s also a separate crime). If this is objectionable (and it is objectionable to many), then Congress needs to change the materiality element of the federal statute. But for now, nothing prevents law enforcement from engaging in this tactic—it’s lawful. (For better or worse, the determination by the Attorney General that Michael Flynn’s false statements were not material stands apart from virtually every case filed by federal prosecutors; the determination does not offer sound guidance on how a prosecutor will act in the mill-run case.)
The relevant law in Wisconsin, Wis. Stat. § 946.41(1), is equally wide in its reach. In addition to criminalizing physical resistance and nonphysical obstruction, it criminalizes knowingly giving any false information to an officer with the intent to mislead the officer, regardless of whether the information actually obstructs the officer (i.e., interferes with the officer’s duties). State v. Reed, 2005 WI 53, ¶ 21, 280 Wis. 2d 68, 695 N.W.2d 315. Indeed, the obstructing statute is broad enough to criminalize an “exculpatory no,” that is, a “mere denial of guilt” that does not actually interfere with the performance of police duties. Id. ¶¶ 14–18. Thus, when the police officer—having stopped you for speeding—asks “were you speeding?” (you were), and you respond “no,” that’s a crime.
It happens in mundane cases, as well as in cases involving national security investigations. The lesson is that Michael Flynn should not have spoken to the FBI without first speaking to a lawyer. Nor should you.
If you’re going to answer the police officer’s question, here’s what to say: “I won’t speak with you without my lawyer. I want to talk to my lawyer.” Repeat as often as necessary. Then call your lawyer.