Folks who have read this blog for a while know that my favorite default advice to clients is to just shut up. See, for instance, here and here and here for non-criminal examples, and here and here and here and here and most especially here for criminal examples.
Wow. When I link them all, I come off looking kind of crazy. But I'm like Cassandra, except I'm not a Greek chick, and I'm doomed to walk the earth telling people to shut up without them listening to me instead of telling the truth and having them not listen to me.
Today's case in point: Najibullah Zazi and his dad, Mohammed Wali Zazi. The Zazis (Zazii?) are at the center of a frightened shitstorm over threatened terrorist attacks on U.S. soil. You've probably seen someone on the news trying to make you wet yourself about it.
But Zazi Jr. and Zazi Sr. are not, as of now, charged with any terrorist acts or conspiracies to commit terrorism. Rather, they are charged with lying to the government in violation of 18 USC 1001.
How did that happen?
Zazi Jr. and Zazi Sr. voluntarily went to the FBI, voluntarily answered questions at length, and voluntarily supplied the answers based upon which they are now charged. Zazi Jr. is detained as a result; Zazi Sr. has been ordered released on home detention (a rather good indication of the danger level he is actually viewed as posing).
See, here's the thing: when the FBI, or Homeland Security, or anyone else wearing a badge tells you that they would like you to come 'round to their place and clear up some confusion, they are not looking after your best interests. The best case scenario is that they are indifferent to your bests interests. In a far more likely scenario, they are hoping that you will come in and either (a) confess to a crime, or (b) say something denying the crime that they think they can disprove. If you confess to the crime, you get arrested. if you say something denying the crime, and they think they can disprove it, you also get arrested. Either you get arrested on the underlying crime, and the cops use the (they claim) false exculpatory statement to prove your consciousness of guilt, or they do what they did here — they charge you with a crime for coming in and telling them that you didn't commit a crime.
You can violate 18 USC 1001 (and parallel state statutes) through a very wide array of false statements. The statement must be material to the issue the government is considering. But that is a very low standard — it simply means that the government must be able to show that the statement is of the sort that might possibly have an impact on the decision the government was making. Traditionally the feds used 1001 to prosecute lies that actually had an impact — false statements that led investigations astray, false statements that let a citizen collect money he wasn't entitled to or avoid debts she was required to pay, false applications that got a citizen a passport or license or document he wasn't entitled to, etc. But increasingly the feds use 1001 as a tax on stupid people with shitty lawyers. The government decides what the truth is. The truth is usually that you are guilty of a crime. Then they ask you to come in and answer questions. If you admit you are guilty of a crime, they are happy and charge you with a crime. If you deny that you are guilty of the crime, they charge you with lying to the government — even though they contemplated the possibility that you would do so, and even though your lie had no perceptible impact on the investigation of the matter.
That's exactly what happened to Zazi Sr. and Zazi Jr. Read the complaints against them, which I have uploaded here and here. The affidavits in support of the complaints show that the government knew what it thought the real story was before either Zazi came in for a voluntary interview. When each Zazi denied some fact about the investigation that the FBI believed it could prove, they charged them for it — even though it is perfectly clear that the alleged lie had no impact whatsoever on the investigation.
Some of us regard that as chickenshit.
It's bad enough when the government does it with voluntary statements. But at least those cases can be dismissed as a tax on stupid people with bad lawyers. The government can also set an inescapable perjury trap — it can subpoena you before the grand jury and ask you incriminating questions, and prosecute you for perjury if you don't give the answers they want. Think you can avoid that by taking the Fifth? Think again — the government can ask a judge to immunize your testimony, and have you held in contempt and jailed if you refuse to answer. Your choice, then, is to admit to doing something (say, participating in terrorism) whether or not it is true, and cherish the belief that the immunity order will be worth more than a fart in the wind in the long term, or else go to jail. Think that sounds far-fetched? Federal prosecutors are doing it to harass defendants acquitted of involvement with terrorism.
The FBI — and some defense lawyers — will try to get you to go in to talk by suggesting that if you don't, you might be charged as part of a terrible misunderstanding that you could have cleared up if you had just cooperated. That's bullshit. Any misunderstanding is very likely locked in by the time they are talking to you. And cops can be assholes, but despite the bluster, generally they aren't the kind of assholes who charge you only because you clam up. Rather, if they arrest you after you clam up, it's almost certain that they would have done so anyway. Recklessly talking in order to avoid the vanishingly small change that there is a genuine misunderstand is a wrongheaded weighing of relative risks. There are occasions when it makes sense to go in and talk — but those occasions involve careful analysis by a competent and experienced defense attorney who is familiar with the arena and the gladiators, who will demand that you get a "Queen for a Day" letter at a minimum (a promise of limited use immunity, so your statement can't be used directly against you), and who will have the experience to know when even an immunized statement is too risky to undertake.
So, in summary, listen to poor old Ken/Cassandra while you still have the option. Shut up. Shut up. Shut up. Don't pay the moron's tax by believing that the cops just want to "straighten a few things out" for your benefit. They don't. They want your neck in the noose.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016