I recently came across a commentary about Jeff Fortenberry, a Republican Congressman from Nebraska who is charged with making a false statement to FBI agents concerning the source of campaign contributions he received. The thrust of the commentary was that the FBI was picking on a conservative Republican as part of some deep-state conspiracy to destroy conservatism, or something like that. He was identified as the most recent of a long list of conservative Republicans who have either pled guilty or been convicted of lying. Indeed, at least eleven associates of the former President were charged with lying either to Congress or to investigators. Most were pardoned. According to the commentary, this latest example proves that the FBI is overreaching in its prosecution of citizens.
By way of background, Congressman Fortenberry received a $30,000 campaign contribution from a Lebanese/Nigerian billionaire named Gilbert Chagoury. This campaign contribution was disguised as a contribution from an American. It is illegal for foreign nationals to contribute to the campaigns of American politicians. Fortenberry is not charged with campaign law violations, however. He is charged with lying to the FBI. At the time the campaign contribution was made, Fortenberry did not know that the campaign contribution came from a foreign national. He only later learned the source of the campaign contribution from an individual working for the FBI. Therefore, at the time the contribution was made, Fortenberry was not guilty of anything.
After being told of the source of the contribution, Fortenberry did not amend his campaign filings. Even worse, he allegedly lied to the FBI about what he knew. So, one might say that the FBI manufactured the charge in order to indict and convict Fortenberry. Were they underhanded and duplicitous? Maybe. Does it matter? No. Given an opportunity to lie, a politician will be unable to resist. It’s like moths to a light. The need to twist reality to fit the party narrative is so strong in a politician, that the politician simply must lie. They do it daily. The truth can be as deadly to a politician as the sun is to a vampire. They must shrink away from it. The FBI knew Fortenberry would lie, and they just set everything up and let it happen.
The lesson to be learned from Fortenberry’s experience with the FBI is not that the “deep state hates conservatives”, however. It’s not even that lying is unacceptable. The real lesson is that dealing with government agents and prosecutors is not for amateurs.
Most federal law enforcement agents are intelligent, hardworking, and cunning. They are supported by various lawyers within their agencies who are specialists in their areas of the law and by lawyers at the Department of Justice (DOJ) who are among the most capable lawyers in the world. When the government sets its sights on an individual, that individual is in deep trouble, whether he or she be a conservative, a liberal, a priest or a drug dealer. Things are not going to end well without an experienced white-collar criminal defense attorney. Even with one, they might not end well, but at least there is a chance.
This brings us to 18 U.S.C. 1001. This statute makes it a crime to, among other things, lie to a federal agent. The statute is a felony which carries a maximum sentence of five years in prison (eight years in terrorism cases). Predecessors to the current statute go back at least to the 1930s, and it has been used to prosecute some of the most high-profile white-collar criminals in the country. Some of the more famous people to be convicted under the statute are Martha Stewart, Scooter Libby, and Rod Blagojevich. A number of former Trump associates have been convicted of 18 U.S.C. 1001.
To experienced white-collar criminal defense attorneys, 18 U.S.C. 1001, is an ever-present trap for the unwary. In one case, I defended a businessman who was indicted on an allegedly wide-ranging Medicare fraud scheme involving many millions of dollars. The case was a high-profile case involving a press conference by the Attorney General himself. The allegations of fraud involved taking Medicare patients from nursing homes to kidney dialysis treatments by ambulance rather than by van or some other mode of transportation and then billing the government for the service. After months of hard work and the employment of medical experts we were able to prove that the particular patients in question in the Indictment had other medical conditions that made transport by ambulance medically necessary. All allegations of fraud were dismissed by the government, but the defendant was nevertheless convicted of 18 U.S.C. 1001 because of some statements he made in conversations with the FBI before his arrest.
A more famous case involved Martha Stewart. Ms. Stewart is best known for making cookies and decorating for Christmas and other holidays. She exudes graciousness and warmth. It is hard to believe that there is anyone in the world who would not like Martha Stewart. There was. In 2001, Ms. Stewart received inside information from her stockbroker allowing her to avoid a $45,000 loss on some stock she owned. When questioned about the trade by SEC investigators, she lied about what she had been told. She was subsequently indicted and convicted of lying to federal agents and sentenced to five months in prison. Significantly, the stock trade was legal. Had she not lied to agents, she would not have committed any crime.
This outcome has become a recurring theme in my practice. I do not know how many times I have been retained for an investigation into an alleged multi-million-dollar fraud scheme and been successful in proving there was no fraud only to have my client convicted of a false statement’s charge. This may seem unfair, like “bullshit” to quote Fortenberry’s former defense counsel, Trey Gowdy, who led him into the U.S. Attorney’s Office so that he could lie to the FBI, but it is a felony with the potential for prison time. It needs to be taken seriously.
What should an attorney representing someone in an interview with the government do? First, he or she must know of 18 U.S.C. 1001’s existence, and he or she must make sure the client understands the ramifications of the statute and of lying. Lying has become all too commonplace in modern society, and an admonition to tell the truth seems as outdated as corsets and top hats to most people, but lying to a federal agent carries with it consequences that may also seem outdated. The client needs to understand that there can be no lies, no half-truths, no obfuscations, no convenient forgetfulness. He or she cannot rely upon ambiguities in government questions. If a client for any reason cannot tell the whole truth, the client should not do the interview.
The attorney must also understand the underlying case the government is investigating in order to assess the jeopardy the client faces. He or she must meet with the client often enough to understand the facts of the case. The client must also trust the attorney completely and be willing to tell the attorney the complete and unvarnished truth. The attorney should then use this information to collect further facts and details so that when the meeting with the government occurs, the attorney will be prepared to stop an interview that is headed into dangerous territory.
Most importantly, the attorney must make the client understand he or she cannot lie. It’s not like a television appearance, a social media post, or a tweet, where lies spring forth without consequence. The client has the right to end any interview at any time and can always remain silent. Silence is not a crime. Silence may be golden.
“But,” some of my clients will say, “if I remain silent, the agent will think I’m guilty.” News flash—the agent already thinks you’re guilty. The goal is not to give the agent an easy charge to prove.
If the white-collar defense attorney knows what he or she is doing, the attorney will obtain a “proffer” letter from the U.S. Attorney which provides the client with a limited form of immunity. Armed with this letter, the client can tell the truth without fear of repercussion. Well, not really, but it does provide some protection.
But what about poor Mr. Fortenberry? Surely the government cannot mislead a suspect, can it? Aren’t government agents supposed to always tell the truth, like boy scouts? I mean, if it is a crime for a witness to lie to the government, shouldn’t it be equally bad for the government to lie to a witness? The short answer is no. Lying is a one-way street in which it is an investigative tool for government agents, but a crime for witnesses.
Our friends to the North in Canada have a concept in their laws called the “Honor of the Crown”. At least when dealing with native Americans, they are required to act with “honor, integrity, good faith, and fairness.” I don’t know how real the concept is, but it sounds good. South of the border, however, there is no “Honor of the Government”. Long ago, in Faizer v. Cupp and Oregon v. Mathieson, the Supreme Court held that police can lie to suspects during investigations. In Wren v. United States, the Supreme Court held that police could use traffic violations as a pretext to stop a vehicle they want to search. These forms of dishonesty have now infiltrated the police procedure and become common place at the local, state, and federal levels. Thus, it is not uncommon for police to lie to a suspect or have an informant lie to a suspect. Often times, the lie can provoke an admission. Other times, a lie from law enforcement to someone who trusts law enforcement can cause a false confession and a wrongful conviction. Examples of law enforcement lies leading to wrongful convictions are too numerous to count. The FBI is not immune from the mistakes other law enforcement agencies make.
The FBI will frequently meet an ordinary citizen and ask some seemingly innocuous questions. This usually occurs at the end of a day when it is difficult to locate an attorney. The famous Miranda warnings seen on television are never given. Miranda warnings are only required when there is a “custodial interrogation”. When agents approach a person at his or her office or home, they are not in “custody” and are fair game for what happens next. Agents will assure the person being questioned that he or she is not suspected of a crime or at least create the impression that they are not under investigation. They may encourage a person to talk about things with which the person is not familiar and then later threaten prosecution if the person was mistaken in what he or she said. They may lie to the witness about evidence they have or what other witnesses have said. This conduct should be expected and anticipated—a competent lawyer is the first line of defense.
Many powerful people have succumbed to the mistaken belief that they are beyond reproach and that anything they say will be taken as gospel. In their own minds, they are on the side of angels, there to “help” or “explain” things to the government. In reality they may be targets like anyone else, and when they stray from the truth, they open themselves up to an 18 U.S.C. 1001 charge. That is what happened to Michael Flynn, a former Army general and National Security Adviser to President Trump. And that is likely what happened to Congressman Fortenberry.
Contrary to the commentary mentioned in the opening paragraph, Republicans or conservatives do not appear to be targeted more than Democrats or liberals for prosecution. Earlier, I mentioned Rod Blagojevich, the former Democratic governor of Illinois, who was prosecuted for making false statements, among other charges, and sentenced to a lengthy prison sentence. To cover the criminal charges and convictions of politicians from either party would fill volumes and be well beyond the scope of this article.
Suffice it to say, lying to the government is bad, regardless of who you are. When involved in a federal investigation or approached by federal agents, an experienced lawyer is your best defense. Dealing with the government is not a job for amateurs.