Ninth Circuit Imposes (Some) Limits On Cops Yanking Things Out of Your Ass

Mark Tyrell Fowlkes had a bad day.

For you or me, that means realizing that there's no credit left on our Starbucks card or our co-workers being annoying or getting a flat tire. For Fowlkes, it meant the Long Beach Police Department forcibly pulling something out of his ass.

LBPD, assisted by the DEA, were wiretapping and surveilling Fowlkes to see if he was dealing drugs. He was. LBPD arrested him once, caught him with drugs and a gun, and released him, probably to see where he'd lead them. A week later, they ran a pretextual traffic stop on him, arrested him, and took him to jail. There they strip-searched him:

Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and “assistance” in the form of additional officers because he thought Fowlkes might have drugs.

Officers believed that Fowlkes was not being cooperative displaying his anus and thought he was trying to push something in there. One Sergeant testified that he believed Fowlkes was trying to force an object further into his anus in order to destroy evidence. That's not how anuses work. That's not how any of this works. But to prevent Fowlkes from further hiding or destroying something in his anus, Sargeant Michael Gibbs “delivered a drive stun tase to the center portion of the defendant’s back” and the officers handcuffed him. Officers claim they could see a plastic bag protruding from Fowlkes. With Fowlkes cuffed, tased, and under the control of five officers, the officers decided that immediate action was needed to protect evidence. Sargeeant Michael Gibbs gloved up and pulled the object out of Fowlkes' rectum without seeking a warrant, without medical training or medical personnel, and "without the assistance of anesthesia, lubricant, or medical dilation," producing blood and feces.

So. Not as bad as the day David Eckert had when New Mexico police enlisted the help of a doctor to penetrate him repeatedly, but still bad.

The feds charged Fowlkes with drug and gun possession. That included a count based on the drugs pulled out of him. The trial court rejected his argument that the drugs seized from his anus were illegally obtained. Yesterday, in a revised opinion, the Ninth Circuit decided to put some limits on cops' freedom to root about in our collective asses.

The Ninth Circuit found the warrantless visual strip search reasonable, including the visual body cavity search, mostly on the grounds that the government arrests so many people it would be impractical to get warrants to strip-search them, and because jail safety is important because the government arrests so many people. As Dilbert would say, that's not being circular, it's having no loose ends.

But the Court noted actual limits on intrusions into our bodies. "Therefore, while visual cavity searches that do not require physical entry into a prisoner’s body are generally permissible without a warrant during the jail intake process, physical cavity searches generally are not." Did the Court recognize a general rule against sergeants yanking things out of our asses without a warrant? Not exactly. It's the Ninth Circuit, sure, but this is still America. The Court avoided a broad rule. "We need not and do not determine whether a warrant is required to seize evidence discovered during a visual strip search from an inmate’s body because the officers’ conduct here was unreasonable for other reasons." The Court decided that the search was unreasonable — and thus violated the Fourth Amendment — because the officers violated the jail's own written policies requiring a medically trained person conduct cavity searches, because Fowlkes posed no immediate threat, because the officers had no training in such measures that would let them evaluate whether they were safe or necessary, and because the officers did not take any steps to minimize trauma:

Here, the LBPD officers did not take adequate steps to minimize Fowlkes’ physical trauma. They did not, for example, use lubrication or ensure that the removal was conducted under sanitary conditions; they did not seek the guidance or assistance of medical personnel; and they did not assure themselves that removing the object from Fowlkes’ rectum was safe—indeed they did not know the size, shape, or substance of the object. Further, they did nothing to mitigate his anxiety or emotional trauma. They did not, for example, offer him options for removing the contraband or secure his compliance; they did not (and could not) assure him that the removal was safe or being conducted by a trained professional; and they did not (and could not) assure him that the procedure was legal and in keeping with LBPD policy rather than an arbitrary show of force.

The Ninth Circuit — bless its heart — seems to think that physical and emotional trauma were a bug, not a feature, of the officers' approach. But at least we know: there are limits to the judiciary's willingness to let cops conduct medical procedures on you.

So the Ninth Circuit reversed Fowlkes' conviction — on the one count arising from the drugs found in his rectum. It upheld the rest of the conviction.

Isn't justice majestic?

Lawsplainer: What's Going On With That Troll Joshua Goldberg, Anyway?

Ken, you need to explain the Ninth Circuit's decision about the interaction between Section 512(f) of the DMCA and fair use law, particularly in the context of surviving motions to dismiss or summary judgment.



You can't make me.

Fine. God. You're such a child. Will you write about SOMETHING please?

. . . . maybe.

Like what?

Joshua Goldberg.

The multi-faced troll the feds just arrested? The one everyone wants to pin on "the other side" of whatever argument they're having?

yes him

Seems kind of a cop-out to me. But fine. What's he charged with, and how?

The feds — more specifically, the U.S. Attorney's Office for the Middle District of Florida — have filed a criminal complaint charging Goldberg with one count of distributing information about explosives and destructive devices.

Only one count?

It's only a complaint. See, in the federal system, prosecutors can seek a complaint — an accusation approved by a U.S. Magistrate Judge, based on the probable cause demonstrated in a written and sworn affidavit by a federal law enforcement officer — or get an indictment, which is an accusation issued by a grand jury.

But unless they plead immediately, all federal defendants charged with felonies are entitled to be charged by grand jury indictment. So if you're looking to arrest someone based on a complaint, you don't necessarily have to throw all of the charges in there — you'll have the chance to throw more in when you draft an indictment and go to the grand jury.

So he could get charged with more later?

Sure, if they've got the evidence.

Right now he's charged with one count of distributing information about things that go boom under Title 18, United States Code, Section 842(p).

What's that when it's at home?

It's a statute making it illegal to teach people how to make bombs so they can use them in a crime, basically:

(2)Prohibition.—It shall be unlawful for any person—

(A) to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence; or

(B) to teach or demonstrate to any person the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, knowing that such person intends to use the teaching, demonstration, or information for, or in furtherance of, an activity that constitutes a Federal crime of violence.

Hmm. So it criminalizes teaching about things? Could that be a First Amendment violation?

Some will say so, but I don't think it's a very strong argument. Notice that the crime requires that the defendant intend that the information be used in a federal crime of violence. A federal court in San Diego considered a First Amendment attack on the statute and rejected it on that basis:

The specific focus of the statute is not on mere teaching, demonstrating, or disseminating information on how to construct a destructive device, but upon teaching, demonstrating, or disseminating information with the specific intent that the knowledge be used to commit a federal crime of violence.

Courts have upheld similar statutes so long as they require that the defendant intended to further an illegal act.

How are they going to prove what Goldberg intended? He's a troll. The whole point of his existence is saying things he doesn't mean.

Well, their case got a hell of a boost when Goldberg effectively confessed to the elements of the crime.

The complaint and supporting affidavit are here. The feds say that Goldberg provided bombmaking information to be used in a terrorist attack on a Kansas City September 11 memorial. The feds have a confidential informant posing as a potential domestic terrorist, referred to as "CHS" in the complaint. They monitored communications in which Goldberg encouraged CHS to engage in a terrorist attack using bombs at the Kansas City memorial, and sent him links to pages with instructions for making bombs, and suggested what sort of shrapnel to use in the bombs.

Now, Goldberg could have engaged in the troll's typical defense — that he knew that CHS wasn't a real terrorist and was stringing him along. I wouldn't want to go to a jury with that, but it's colorable. But Goldberg blew that defense by talking to the FBI when they raided his house:

JOSHUA GOLDBERG admitted that he provided that individual with information on how to manufacture bombs. JOSHUA GOLDBERG further admitted that he believed the information would create a genuine bomb. Specifically, JOSHUA GOLDBERG stated that he provided the individual with instructions on how to create a pressure cooker bomb. When creating the pressure cooker bomb, JOSHUA GOLDBERG admitted that he instructed the individual to include nails and to dip the nails in rat poison. JOSHUA GOLDBERG also admitted that he instructed the individual to place the bomb at an upcoming memorial in Kansas City, Missouri that was commemorating the September 11,2001 attacks. JOSHUA GOLDBERG stated that he believed that the individual did intend to create functioning bombs and would actually attempt to use them to kill and injure persons. During the course of the interview, however, JOSHUA GOLDBERG made varying statements in an attempt to explain his actions in providing bomb making information to the individual. In general, JOSHUA GOLDBERG claimed that he intended for the individual to either kill himself creating the bomb or, if not, that he intended to alert law enforcement just prior to the individual detonating the bomb, resulting in JOSHUA GOLDBERG to receive credit for stopping the attack.

So. By failing to shut up — which one should always do when confronted with federal agents, at least until one gets legal advice — Joshua Goldberg has made the government's case dramatically stronger.

Is this going to be another case where there was never going to be any terrorist attack because the defendant was dealing with a government agent all the time?

Sure looks that way.

So, how much time could he do?

The statutory maximum for the charged crime is 20 years. But, as Popehat readers know, his sentence will be calculated using the recommendations of the U.S. Sentencing Guidelines; the statutory maximum is only a ceiling and usually has little to do with the actual sentence. Plus, the feds will probably load more charges on when they indict.

We have very little information, and we don't know the final charges yet. But it appears to me that under the applicable guideline, taking into account only what's in the complaint, his recommended sentence will be very substantially less than 20 years. As currently charged, it's more like a couple of years if he pleads guilty. Of course, a judge can go above the guidelines, and may well do so in a case this vivid.

So. What's next for him?

He appeared in court and his Public Defenders agreed that he would stay in custody pending a bail hearing. That's often, though not always, a sign that the defense thinks they have a tough argument to get him out on bail. He's entitled to bail unless the government can show that's he's a danger to the community or flight risk in ways that amount and conditions of bail cannot address.

Normally, the next step would be for the feds to indict him, and for him to enter a not guilty plea on the indictment. But today apparently he got new lawyers and the U.S. Magistrate Judge ordered him to be evaluated for competency to stand trial.

What? He's trying an insanity defense?

Not necessarily. Competency is different than insanity. The insanity defense goes to whether the defendant can be held responsible for his actions. A competency exam assesses whether the defendant is even competent to stand trial — that is, whether as a result of mental illness he's "unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."

So if he's incompetent, he walks without even going to trial?

Oh no. First he gets evaluated at a federal psychiatric facility for up to 30 days. There's one in Springfield, Missouri, for instance. Then, if the judge finds by a preponderance of the evidence that he's competent, he stands trial. If the judge finds him not competent, he gets sent back to the federal psychiatric facility for up to four months to see if they can make him competent using drugs and therapy. Then he gets sent back for another assessment, and maybe more therapy and drugs, and so forth. He's in custody the whole time. Eventually, if it looks impossible to make him competent but he's still adjudged dangerous, he can be committed long-term.

The process of being shipped to a place like Springfield, and "treated" there, and returned, is notoriously unpleasant. I think I might prefer to get tried and sentenced. I mean, assuming I helped people make bombs or something.

What do you anticipate happening next?

He'll be back in 30 days, or longer if the parties agree to a longer time. The judge will make a determination of his competency, which the parties may or may not contest. Then, anything can happen. Remand to treatment if he's not competent, a guilty plea to minimize exposure, trial, and everything in between.

By the way, if his competency is in question, if I were his lawyer, I'd be thinking about whether I could get his confession thrown out. It's not a Fifth Amendment violation to take a confession from someone who is incompetent; a defendant still has to show police coercion. But a defendant's lack of competence can be one factor in determining whether law enforcement coerced a confession. It's worth a look for his defense.

Is that all?

For now.

Now do the DMCA case!

Bite me.

Ninth Circuit Harshly Scrutinizes Law Enforcement Leak, Threatens Sanctions Against Department of Justice

What the hell is going on in America?

The federal judiciary — which previously could be counted upon to be relatively complacent in the face of a culture of prosecutorial misconduct — has begun to take notice and harumph and even do something about it. In January a Ninth Circuit panel blasted state prosecutors defending a conviction won with perjury. Ninth Circuit Judge Alex Kozinski has started a blunt public and academic discussion of misconduct as a systemic problem. This week the Fifth Circuit cited prosecutorial misconduct — including federal prosecutors commenting on cases online under pseudonyms — in overturning the federal convictions of some murderous New Orleans police officers.

This is a trickle, not a tide. But normally federal judicial recognition of the problem of misconduct is a parched desert; any relief is notable. And in the last two months, judges have even questioned one of law enforcement's most cherished methods of gaming the system — leaks to the press. The situation raises questions not just about government misconduct, but about how the press addresses such misconduct.

[Read more…]

My Bad Use of Force Decision Shows You Shouldn't Second-Guess My Use of Force Decisions

The Blaze, Glenn Beck's tequila-sweat dream-diary, repeats a law enforcement talking point today. The talking point — "scrutinizing use of force will kill cops" — is rarely served this explicitly or uncritically.

The story's about a Birmingham police officer who got pistol-whipped at a traffic stop. A suspect from the car he stopped approached him aggressively, cold-cocked him, and pistol-whipped him. Cold-hearted bystanders took pictures of him bleeding on the ground rather than helping. Thankfully, the officer will recover. But he's saying that he didn't use force in time to defend himself because of fear of how the media might treat him:

"A lot of officers are being too cautious because of what's going on in the media," said the officer, who asked to remain anonymous for the safety of his family. "I hesitated because I didn't want to be in the media like I am right now."

The Blaze pointedly notes:

The suspect in question, Janard Shamar Cunningham, is a black man and was seemingly unarmed during the incident.

Police — eagerly quoted by The Blaze — are using this to complain about media coverage of their actions:

Heath Boackle, a sergeant with the Birmingham Police Department and president of the city's Fraternal Order of Police, said Thursday that cops are "walking on eggshells because of how they're scrutinized in the media."

Police Chief A.C. Roper sees the episode — as well as the reaction, including celebratory and vitriolic comments posted online alongside images of the wounded officer — as symptomatic of a larger problem, in which some don't respect law enforcement.

"The nobility and integrity of policing has been challenged," Roper said. "As a profession, we have allowed popular culture to draft a narrative which is contrary to the amazing work that so many officers are doing everyday across this nation."

Here the typical subtext is closer to plain text: reporting on, scrutinizing, and criticizing officer use of force puts officers in danger by making them hesitate and second-guess themselves.

This is monstrous gibberish.

A cop made a bad use of force call. Thank God he lived. But a bad use of force call is not a good argument for less scrutiny of use of force. "I have trouble making decisions because of fear of how I will be treated in the media" does not convey "I'm capable of good judgment about the use of force, so you should trust me more."

Chief Roper complains about "popular culture" drafting a "narrative." What he means is that he's mad that there has been a mild drift away from the existing narrative — the law and order (and Law & Order), thin-blue-line narrative in which the cop is presumed to be the good guy and force is presumed to be righteous, a necessary tool for discovering truth and punishing evil, thwarted only by dishonest lawyers and publicity-hungry politicians. That narrative has been — and remains — overwhelming.

Police work is not, contra Chief Roper, an occupation of nobility and integrity, any more than any other profession is. It's a profession made up of noble and ignoble people, honest officers and liars, decent folks and utter thugs. It does not deserve the cultural free pass we've given it. The complaints here show how extensive that free pass is. Consider: the officer and his supporters aren't saying that he hesitated using deadly force on a human being because using deadly force on a human being is something to be done with great care. They're saying he hesitated — and that other officers might hesitate — because of how it might look on the news.

If "maybe I shouldn't kill this guy unless I have a good reason" isn't an adequate motivator to govern deadly force — and our history suggests that it isn't — I'm okay with "maybe I don't want to be on the news" stepping in to help.

Edited to add: I took some shots at The Blaze here, but the CNN story linked above is just as cop-deferential.

Lawsplainer: Did Gawker Aid and Abet Extortion? Nah.

tl;dr: nah.

Last week Gawker Media published an unusually vile story about an escort's apparent attempt to blackmail a married entertainment executive. In just one post, Gawker outed a man for an alleged same-sex encounter and acted as the willing instrument of blackmail.

Many Internet Lawyers have suggested that Gawker committed extortion, or acted as accessory after the fact to extortion, and that its writers may be criminally liable.

Are they?

Answer: no, probably not.

Assume For the Moment They Aren't Just Credulous Hacks

Let's set aside for the moment the distinct possibility that the whole incident is the invention of an unbalanced conspiracy theorist who duped Gawker through the intricate method of saying something scandalous that reinforced their worldviews.

Let's also assume, for the sake of argument, that the escort's communications to the victim constituted extortion: that at some point he said something like "use your influence to help me with my legal problem or I will reveal to the media that you sought to hire me for sex." Gawker's post containing some of the alleged communications is down, and we can hardly trust Gawker to have reported them completely or accurately.

Did Gawker Commit Extortion? No.

Title 18, United States Code, section 875(d) makes extortion a felony:

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

Many courts have defined "other thing of value" broadly enough that it can probably include the victim's use of his influence to assist the extortionist in a legal matter.1

The escort may have violated this statute, but Gawker didn't. So far as we know, Gawker and its writers didn't demand anything of value from the victim. Rather, once the extortionist came to them, they printed his story. They carried out the course of action threatened by the extortionist, but they didn't make the threat or demand the thing of value themselves.

Was Gawker an Accessory after the Fact? No.

Title 18, United States Code, section 3 criminalizes being an accessory after the fact. However, that status is narrowly defined to helping people escape:

Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.

Gawker didn't do that. If anything, publishing the extortionist's story made it more likely he'd be caught.

Did Gawker Conspire To Commit Extortion? No.

I don't think Gawker conspired to commit extortion, either. The elements of federal conspiracy are "1) an agreement to accomplish an illegal objective, 2) coupled with one or more acts in furtherance of the illegal purpose, and 3) the requisite intent necessary to commit the underlying substantive offense." But here the unlawful objective is demanding something of value (an exercise of influence) in exchange for silence. There's no indication that Gawker did that or agreed to it. If Gawker had said "unless you help this guy, we'll publish," that would be conspiracy to commit extortion. But what Gawker did instead was publish the threatened embarrassing information. There's no indication that they attempted to help the extortionist get anything from the victim.

Did Gawker Aid and Abet Extortion? No.

Someone can also be guilty of extortion if they aid or abet it under Title 18, United States Code, Section 2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The elements of aiding and abetting are:

(1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense.

That's not what Gawker did. Gawker didn't intend to help the extortionist get something of value from the victim in exchange for silence. That's the opposite of what Gawker wanted — a lurid story to draw clicks. Gawker lacked specific intent to extort, so didn't aid and abet extortion.

There Oughta Be A Law

You could imagine a law that, like a prohibition of receiving stolen property, makes it illegal to publish embarrassing facts to help an extortionist carry out their threat. But that law would probably run afoul of the First Amendment, like any law that ascribes to a publisher of information the liability of their source.

Gawker and its writers probably didn't violate federal law.2 Whether they have civil liability is a different (and potentially more complicated) question. And, of course, they have moral liability: they're vermin.

No, Federal Grand Jurors Do Not Issue Federal Grand Jury Subpoenas

Over at the Daily Beast, Nick Gillespie attempts to bring religiosity to the fuzzy-wuzzies by describing what it was like to be hit with a ridiculous grand jury subpoena and unprincipled gag order. In response, several Daily Beast commenters trot out an argument I see now and then: "well, citizens on the grand jury thought that there were grounds to issue a subpoena."


In fact, hell no, or if you prefer, bless your heart, no.

[Read more…]

DoJ's Gag Order On Reason Has Been Lifted — But The Real Story Is More Outrageous Than We Thought

Last Friday the folks at Reason confirmed what I suggested on Thursday — that the U.S. Attorney's Office for the Southern District of New York, after hitting Reason with a federal grand jury subpoena to unmask anonymous hyperbolic commenters, secured a gag order that prevented them from writing about it.

Nick Gillespie and Matt Welch describe how it all went down. Read it.

So, the truth is out — and it's more outrageous than you thought, even more outrageous than it appears at first glance.

What, you might ask, could be more outrageous than the United States Department of Justice issuing a questionable subpoena targeting speech protected by the First Amendment, and then abusing the courts to prohibit journalists from writing about it?

The answer lies in the everyday arrogance of unchecked power.

[Read more…]

Did The Department of Justice Get A Gag Order Silencing Reason About The Grand Jury Subpoena?

On June 8 — ably assisted, as I am now, by my co-blogger Patrick — I reported on a federal grand jury subpoena issued to in an effort to unmask commenters who used obnoxious hyperbole about Judge Katherine Forrest, who sentenced Ross "Dread Pirate Roberts" Ulbricht to life imprisonment in the Silk Road case.

In that post, I reported that Assistant U.S. Attorney Niketh Velamoor indicated that he "believed" that there was a gag order prohibiting from disclosing the existence of the subpoena. I expressed skepticism about that claim because Mr. Velamoor had just two days before signed a letter telling that the Department of Justice asked, but did not require, that the subpoena be kept secret.

Since then, additional factors lead me to believe that there is, in fact, an under-seal gag order purporting to prohibit from disclosing or discussing the grand jury subpoena.

This post discusses why I think that, and why such a gag order would be an abuse of the law and a grave abuse of power.

[Read more…]

Department Of Justice Uses Grand Jury Subpoena To Identify Anonymous Commenters on a Silk Road Post at

The United States Department of Justice is using federal grand jury subpoenas to identify anonymous commenters engaged in typical internet bluster and hyperbole in connection with the Silk Road prosecution. DOJ is targeting, a leading libertarian website whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.

Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet?

Because these twerps mouthed off about a judge.

[Read more…]

Dennis Hastert And Federal Prosecutorial Power

This week, federal prosecutors indicted former Speaker of the House Dennis Hastert.

Hastert is charged with two federal crimes: structuring financial transactions to evade IRS reporting requirements in violation of 31 U.S.C. section 5324(a)(3) and lying to the FBI in violation of the notorious 18 U.S.C. section 1001. Both charges reflect the breadth of federal prosecutorial power.

The indictment has mostly inspired chatter about what it doesn't say. Hastert is charged with structuring withdrawals of less than $10,000 (so that they would not be reported to the IRS) so that he could pay off an unidentified person for Hastert's unidentified past misconduct. What past misconduct, or threatened accusation of misconduct, could lead Hastert to pay $3.5 million? The indictment doesn't say, but it has been drafted to imply that the allegation of past misconduct relates to Hastert's job as a teacher and coach in Yorkville, Illinois. Hastert isn't charged with doing anything to the accuser, and the accuser isn't charged with extortion.

As Radley Balko has pointed out, structuring (or "smurfing") charges are extremely flexible. They demonstrate the reality of how Americans targeted by the Department of Justice can be charged. We imagine law enforcement operating like we see on TV: someone commits a crime, everyone knows what the crime is, law enforcement reacts by charging them with that crime. But that's not how federal prosecution always works. Particularly with high-profile targets, federal prosecution is often an exercise in searching for a theory to prosecute someone that the feds would like to prosecute. There is an element of creativity: what federal statute can we find to prosecute this person?

We'll learn more about the reasons for Hastert's payments in the course of the case (or through Department of Justice leaks calculated to harm him). I suspect we'll find that the investigation happened like this: the feds heard that Hastert was paying someone off based on an accusation of old misconduct, determined that the misconduct was too old (or out of their jurisdiction) to prosecute, and started subpoenaing records and interviewing witnesses until they found some element of what he was doing that was a federal crime. In other words, they targeted the man, and then looked for the crime.

The problem with this scenario is that federal criminal law is extremely broad. Practically speaking, it gives federal prosecutors vast discretion to determine who among us faces criminal charges. If you think that you're safe because you've never committed a crime, you may learn to your surprise that you're wrong.

The rational response to this situation is clear: don't trust the feds, don't talk to the feds. But Dennis Hastert, like many accomplished people, believed he could talk his way out of the situation. When the FBI came to interview him, he didn't refuse to answer and call his lawyer. According to the indictment, he confirmed in response to an FBI agent's question that he was withdrawing cash in order to store it because he didn't feel the banking system was safe. For that, he's been charged with lying to federal agents.

This is another aspect of the federal government's vast prosecutorial discretion. Hastert's alleged false statement happened in December 2014. When agents interviewed him, I guarantee you that the feds had already made their case. They had already put witnesses before the grand jury, they had already used grand jury subpoenas to get Hastert's bank records, they already knew exactly how they would charge and prove up the structuring charge. When they went to interview Hastert, there were only three possible outcomes: he would refuse to talk, he would confess, or he would lie in a way they could easily disprove. They were looking either for the confession, which would make their case easier, or the lie, that would give them a new theory on which to charge him with a crime. Under Section 1001 a lie must be material to be criminal. But the materiality element is weak. It only requires the government to show that the lie is the sort of statement that could conceivably influence the FBI. It doesn't require the government to show that the lie actually had any impact whatsoever. Thus the FBI can show up with its case ready to indict, fish for a lie that they know is a lie, and pile that charge on top of whatever the substantive charge is. That's why I bring up Section 1001 so often and explain why it means you must shut up. You can be prosecuted for as little as saying "no, I didn't" in response to a already-documented accusation.

The criminal justice system needs to be able to prosecute perjury — lies under oath before a tribunal. And I can see why it needs to be able to punish false statements to the federal government that represent an attempt to commit fraud (say, false statements to get a passport) or that impact an investigation (say, a false accusation that triggers an inquiry).

But ask yourself: what is the legitimate basis for giving the feds the power to prosecute people for exculpatory lies that have no impact whatsoever on their operation?

From the federal government's perspective, the basis is clear: it's a tool to help them charge people they want to charge.

From the citizen's perspective, this situation points to one obvious conclusion: shut up. Never answer a federal agent's questions without a thorough debriefing with a qualified lawyer first.