Patrick already noted that the Blagojevich prosecution suffered an embarrassing reversal today. His take is entirely sensible. I write further only to point out what the verdict — a mistrial on 23 counts, and a guilty verdict on one count of lying to the FBI — says about criminal defense and dealing with the government.
The jury found Blagojevich guilty on Count 24 of the indictment. That count charged him with violating 18 U.S.C. section 1001 by falsely stating to the FBI, during his interviews in the course of the investigation, that he kept a "firewall" between his political activities and his official government activities, and that he did not keep track of who donated to him.
Those assertions were, of course, bullshit. More to the point, they were utterly obvious bullshit. There is no chance whatsoever that Blagojevich's patently ludicrous and self-serving boasts about his rectitude could have delayed or deterred the FBI for a nanosecond. Regrettably, when it comes to Section 1001, that's not the point. The question, in determining whether a lie to a government investigator violated section 1001 is not whether it actually obstructed or influenced the investigation, but whether it was possible that a statement of that kind would influence the investigation. That's such a loose and easy standard that almost any statement related to the subject matter of an investigation will satisfy the element.
Hence federal investigators frequently use 1001 to strengthen otherwise weak cases. They carefully build their proof about all the issues in the case, convince some credulous target and his foolhardy lawyer to talk, and then hope that the target will lie about some detail — or at least make some claim that a jury will believe is untrue. As I've mentioned before, the feds can even use this trick to convert a misdemeanor investigation into a felony investigation, and can certainly transform a losing case into a conviction. Just ask Martha Stewart (who was never indicted on the issues for which she was investigated). Or Rod Blagojevich, who now stands convicted for stupid lies that the FBI didn't believe for a hot second.
People talk to the FBI because they hope that they will be able to convince the FBI that they've done nothing wrong. Lawyers let their clients talk to the FBI because their clients (who are terrified of being charged) want to do so, and the lawyer does not want the client to freak out and blame the lawyer if he takes the Fifth and get charged. But the FBI is not interviewing you to help you. The FBI is not interviewing you with anything approaching an open mind about whether you have committed a crime. The FBI is hoping that you will say something that will help them prove up their case, and that if you don't, you will at least tell some marginal lie that they can charge you for. Just ask the Zasi family. The FBI interview is merely a out-of-court version of a perjury trap.
Some lawyers will argue that they have to walk their client in despite all this, because being charged would be a career death penalty, and they have nothing to lose. But clients will grasp the concept of "nothing to lose" quite differently when they're looking at an actual criminal conviction. Suddenly, the prospect of being disgraced and fired or impeached, but not convicted, will not sound nearly as bad as it did compared to a felony conviction and a stretch in federal prison. Besides, to be indelicate, anyone who occupies so high a position that they have "nothing to lose" in this sense is very likely to be a narcissistic freak. Narcissistic freaks are notoriously unreliable clients and make awful, awful interview subjects. Anyone who listens to Martha Stewart or Rod Blagojevich for thirty seconds will realize that they are highly likely to shit the bed in some spectacular way or other during an interview with the government. Like the scorpion of the fable, it is their nature. Walking them anyway suggests high idiocy or low client control.
Remember Rule One: just shut up.
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