An obscure and little-known federal statute has suddenly been thrust into the forefront of the national consciousness. Recent splashy indictments and plea deals in the ongoing and seemingly neverending Trump-Russia collusion saga have the country abuzz. They have also led to a proliferation of social media “legal expert” weigh-ins. And once the debates on whether or not collusion is a crime, and what-Trump-knew and when-did-he-know-it, are predictably left unsettled, the pundits move on to Title 18 U.S.C. §1001, the making of false statements — more commonly known as lying to the FBI.
On Wednesday, Rep. Chris Collins, R-N.Y., was arrested, along with his son, and charged with insider trading and violation of 1001. If the security fraud charges are proven, Collins may ultimately turn out to be the most hapless and dumbest wannabe inside trader Wall Street has ever claimed as an investor. The media have also made certain to relentlessly point out that Collins was the first sitting member of Congress to endorse candidate Trump. But the government’s selected charges against Collins aside, it was his indictment on those same “lying to the FBI” allegations that seemed to follow a particular pattern of the government; one where they seemingly only seek to pursue this particular statute when the “fish” is of appropriate heft.
And look, after a quarter-century served in the FBI, vigorously working and overseeing criminal investigations across a multitude of disparate criminal violation disciplines, I have yet to move into the “feel empathy for the ruthless and depraved among us” set. If you’re guilty of a crime, I believe that justice should be swift and absolute. Therefore, I’m crying no tears for Collins (if guilty), or for the Trump personnel who were ensnared on 1001 (the president’s short-termed national security adviser, retired Lt. Gen. Michael Flynn, and a former member of the Trump campaign’s foreign policy advisory panel, George Papadopoulos).
Papadopoulos pled guilty to 1001 last October, and Flynn followed suit in December. The Left cheered this victory as “proof” of the president’s collusion with Russia. In actuality, the charges may have been a prosecutorial effort to squeeze both in an attempt to gather dirt on Trump. Neither Flynn nor Papadopoulos have been sentenced to date. But it appears their convictions for an ancillary process crime — meaning charges had nothing to do with an underlying scheme or crime, but occurred during the investigation of the crime itself — had little effect on garnering any useful testimony against Trump.
Now, I know that by relating these facts, I’ll be accused of being a “Trumpist” (I’m anything but) or that I am condoning criminal activity — I am not.
What I am doing is pointing out the seemingly selective application of the 1001 statute. Do I believe its use against Trump allies and Collins are a concerted effort by the “deep state” to undermine the GOP? Absolutely not. You can insert a “laughing” emoji here.
But what it does indicate is a possible predilection by prosecutors to only employ this statute in high-profile cases, or, when necessary as leverage in an attempt to force or compel testimony. Yes, investigators and prosecutors, much as we fight the impulses, can have implicit biases that affect our decision-making. While the vast majority of federal agents and prosecutors successfully suppress those urges, one need only to be reminded of the sordid Peter Strzok and Lisa Page communications to realize there are instances where biases rear their ugly heads.
And so, I began to compile a list of high-profile 1001 applications that immediately came to mind. I quickly thought of the Martha Stewart case — prosecuted by James Comey’s Southern District of New York, by the way — and how it resulted in the television housewares maven serving time, in part due to violation of 1001. Disgraced Gov. Rod Blagojevich, D-Ill., among other sundry political corruption charges, was also hit with “lying to the FBI.” Or even former director of the CIA and one-time commander of troops in both the Iraq and Afghanistan theaters of war, retired Gen. David Petraeus. While Petraeus ultimately pled guilty to the mishandling of classified information, prosecutors could very well have sought a conviction on 1001 and almost certainly used that as potential leverage during his plea deal negotiations.
So, why during my lengthy tenure with the FBI as a line investigator and a supervisor of multiple criminal programs, dealing almost daily with prosecutors in several different districts related to organized crime, narcotics, counterterrorism, extradition, counterintelligence, white collar, and crimes-against-children matters, can I not recall a single instance where my office was successfully able to lobby prosecutors to charge targets of our investigations with lying to us?
One may argue that this is anecdotal and subject to human recall. And you would be correct. But I’ve also spoken with a vast swath of current onboard and retired FBI personnel who share my views. In fact, some of the stories we shared of debates with Assistant U.S. Attorneys related to 1001 were eerily similar in construct.
Often, the response back from our partners on the prosecution side or from their division chiefs went along the lines of “obsolete and obscure statute,” saddled with “zero chance of conviction,” and that since the FBI, at that time, prohibited the video or audio taping of subject interviews, “impossible to prove to jury.” It wasn’t until 2014 that then-Attorney General Eric Holder began to require interviews be recorded.
But even with requirement that subject interviews be recorded, in that same year, the Department of Justice made another consequential decision related to 1001 that would make irrelevant capturing a subject’s words and image on tape. Shifting its long-time stance on a subject’s knowledge of the law, in a series of court filings, DOJ essentially reversed course, requiring prosecutors prove a defendant acted willfully in violation of the law, and that said subject must know that not only was the statement false, but that it was known that this purposeful misstatement was a violation of law. That makes proof of intent, necessary under the statute, even more difficult to gather. It also obviates one of the main purposes for taping interviews.
For those keeping score, lying to police is not a crime. Lying to the FBI, however, is — so long as it can be proven that you had the intention to lie and that you knew that lying to the FBI was a crime.
Which is why you seldom see the statute applied in criminal cases, unless you possess celebrity status or are a significantly sized fish that demands a fattening of an indictment. Or maybe you are the prosecutorial steward of the most consequential political melodrama since Watergate and the ultimate prize is the figure in the Oval Office. In that case, dust off 1001 and wield it for leverage like a cudgel. And while we may not ultimately ever see a scintilla of evidence related to the Trump campaign conspiring with the Kremlin to impact the 2016 election, we may yet see a few more like Flynn and Papadopoulos ensnared in a wide casting of the 1001 net.
James A. Gagliano (@JamesAGagliano) worked in the FBI for 25 years. He is a law enforcement analyst for CNN and an adjunct assistant professor in homeland security and criminal justice at St. John’s University.
