Fault Lines
19 October 2017

Make Shutting Up Your First Instinct

November 2, 2016 (Fault Lines) — Repetition, we’re told, is the key to learning.  But if that were true, then we should have learned by now: shut up when the feds show up on your doorstep to question you. Don’t try to talk your way out of it.

The latest iteration of the lesson comes courtesy of retired Marine Corps General and former Vice-Chair of the Joint Chiefs of Staff James E. Cartwright. General Cartwright – who by all accounts had a distinguished and admirable career of service to the nation – pled guilty last month in United States District Court for the District of Columbia to lying to the FBI. That’s a felony under 18 U.S.C. § 1001. It’s one of the feds’ very favorite felonies, because folks commit it so easily and so clumsily when the FBI comes around asking them questions “just to clear a few things up.”

As is often the case, General Cartwright did not wind up being convicted of the thing the FBI was investigating in the first place: leaks of classified information to the press. Instead, when the FBI interviewed him about those leaks, he lied about whether he was the source of information reported by the press. That’s what caught him – the cover-up, not the alleged crime.

It’s a familiar tale. Martha Stewart was convicted not of insider trading, but of lying to the feds during their insider trading investigation. Scooter Libby wasn’t convicted of leaking Valerie Plame’s identity; he was convicted of lying to the FBI and the grand jury about it. Marine biologist Nancy Black wasn’t convicted of annoying a whale; she was convicted of lying to investigators about whether she annoyed a whale.

Section 1001, the statute criminalizing certain lies to the federal government, is an extremely useful instrument for federal investigators. It’s a backstop, a fail-safe, a way to generate a winnable charge even if the underlying investigation is murky or difficult. Federal agents routinely ask questions even though they already know the answer. They might – to take an example from one of my clients – ask you if you were at a particular meeting even though they have a recording of you at that meeting and witnesses placing you at that meeting. If you lie, you’ve committed a federal crime.

The government doesn’t have to prove that the lie actually misled or delayed or inconvenienced the feds for even a moment. It only has to prove that the lie was about the sort of thing that had the capacity to influence the government. If the lie is about anything remotely relevant to the investigation, that’s easy to prove, even if the agents showed up expecting you to lie, hoping that you’d lie, so that they could generate an easily proven criminal charge against you.

That’s why it’s so important to shut up and ask for your lawyer when government agents come knocking.  Let me break it to you: you’re not perfect. You may be a habitually honest person, but if armed federal agents start interrogating you, you might lie. You might lie because you’re panicked. You might lie because you’re overwhelmed. You might lie because you think (incorrectly) that you can get away with it.

You might even say something untrue out of honest mistake or failure of memory. And then they have you. You may be smart. You may be a White House staffer or a media titan or a financial genius, but you are not smart enough to lie successfully to the FBI when you don’t know what they already know and what investigation they’ve already done. It’s a fool’s game to try, no matter how successful you are.

Would General Cartwright have been charged with anything if he hadn’t lied? Would Martha Stewart or Scooter Libby have been? There’s no way to tell for certain. But each of those intelligent, successful people thrust their own hands into the handcuffs by talking rather than shutting up. Some of them even did it while being advised by attorneys. Learn from this, and shut up.  Don’t talk to investigators without your lawyer, and don’t try to lie your way out of their investigation. There are quicker and more entertaining ways to get charged with a crime.

Ken White is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.  He blogs at Popehat.com.

11 Comments on this post.

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  • Shut Up, He Repeated Incessantly | Popehat
    2 November 2016 at 11:33 am - Reply

    […] got a new post up at Fault Lines about the latest case of "oops I didn't get convicted of what the FBI was investigating but I got […]

  • CLS
    2 November 2016 at 3:31 pm - Reply

    I wish people would actually listen to you when you provide us with your insight.
    And thank you for another great contribution to Fault Lines.

    • Brian
      2 November 2016 at 3:50 pm - Reply

      Some of us do. But we tend to be the ones you don’t hear about.

  • Dan
    2 November 2016 at 4:44 pm - Reply

    What percentage of the time do your clients actually shut up in time to help themselves?

    • Ken White
      2 November 2016 at 6:21 pm - Reply

      I’d say 40% of the time.

      • Dan
        3 November 2016 at 9:22 am - Reply

        That’s actually a lot more than I would have expected. Your posts must have reach!

  • andrews
    3 November 2016 at 9:51 am - Reply

    Someone should also point out the virtues of the “shut up” approach in civil matters. If you are even remotely considering a suit as plaintiff, be assured that a smart defendant will find out everything you have said about it, including those things which suggest that you should lose.

    If you are a defendant, or you expect to be one, it is just as urgent to learn how to say “no comment”. Remember those old _Miranda_ warnings? Well, in a civil matter, anything you say can and will be used against you in a court of law.

    Shutting up has the notable advantage of saving money, too. If the other side happens to request production of all your statements about the case, and you have carefully refrained from making any, then you do not have to pay your lawyer to assemble that information.

  • BDub
    3 November 2016 at 1:16 pm - Reply

    So when is it going to become a feloney to lie to the public, or even just the subject of an investigation, or your attorney?

    • BDub
      3 November 2016 at 1:20 pm - Reply

      Oh, I almost forgot. Whats the legal definition in this situation of a lie? It seems to me that the term “lie” would imply a conscious effort to decieve. That is to say, if you were wrong and not realize it how are you trying to decieve/lie?

  • David Schwartz
    3 November 2016 at 2:19 pm - Reply

    “Boy am I glad my client talked to the police,” said no lawyer ever.

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    1 December 2016 at 9:32 am - Reply

    […] 1, 2016 (Fault Lines) — Fault Lines contributors repeatedly tell you to shut up when dealing with any sort of criminal matter. Three Michigan […]