May 1999

HEADLINE: BEYOND PERJURY : thou shalt not lie. ever; False Statements Act perhaps unduly harsh; Brief Article


Perhaps the greatest irony of the national debate over who should go to prison for lying has gone largely unreported: Even while President Bill Clinton fought for his reputation and job, his administration aggressively argued that Americans who make even the most offhand false comments to practically any government worker deserve harsh punishment.

Under Clinton's watch, Congress amended the false statements statute in 1996 to ensure that people who make false statements during congressional testimony could be prosecuted.

The FBI academy in 1997 added a full training course on ethics for new recruits. According to the academy's official syllabus, subjects of the bureau's investigations have "forfeited their right to the truth."

Federal agents have the right to lie to you-and to put you in prison if you lie to them. Any citizen who makes even a single-word false utterance ("no," "yes") to a federal agent faces up to five years in prison and a $250,000 fine.

The false statements law conveys so much power that, according to Solicitor General Seth Waxman, it could allow federal agents to "escalate completely innocent conduct into a felony." One federal judge condemned the law for encouraging "inquisition as a method of criminal investigation."

In 1998 the Supreme Court reinforced the power of federal agents when it upheld the conviction of New York union official James Brogan. He was surprised at home one evening by two investigators who asked him if he had received any cash or gifts from a real estate company whose employees were represented by his union. He answered no-which, the investigators knew, was false-and received a prison sentence for his one-word answer. (The jury also convicted Brogan of unlawfully receiving $150 in gratuities from the company-a misdemeanor.)

Justice Ruth Bader Ginsburg, in reviewing Brogan's conviction, called attention to "the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes." Justice Ginsburg warned that the Supreme

Court's decision will apply the federal law to encounters between federal agents and their targets "under extremely informal circumstances which do not sufficiently alert the person interviewed to the danger that false statements may lead to a felony conviction." Ginsburg concluded that the broad interpretation of the law may result in "government generation of a crime when the underlying suspected wrongdoing is or has become nonpunishable." In other words, you can be not guilty of a crime but guilty of lying about the same noncrime.

Unfortunately, federal agents use the powers granted by the false statements act far more often than most Americans realize. And they almost never warn you that a wrong single-word answer can earn you hard time.

For instance, if you smuggle in one Cuban cigar-and lie to a Customs inspector who asks what you purchased abroad-you could face two years in prison or a fine. Or, if you merely fail to complete a Customs declaration form, you could face felony charges for making a false statement.

If you question the National Highway Traffic Safety Administration's position on air bags and apply for a switch to deactivate the device, you have to check off one or more state-approved reasons. You then have to certify that the statement you just made is "truthful, correct and complete to the best of your knowledge and belief" and acknowledge that if you make a false, fictitious or fraudulent statement you are subject to criminal prosecution.

If a taxpayer misreports his income by only a few hundred dollars, he can be fined or sent to prison for tax fraud. But if an IRS employee misrepresents federal tax law to jack up a citizen's tax bill by thousands of dollars, he is not penalized.

Roughly 2 million Americans are audited each year; these audits generate almost $30 billion for the federal government.

How consistent are auditors in their misrepresentations? In 1996 the IRS Appeals Office found that almost 70 cents of each dollar of additional taxes that auditors demanded that year were unjustified. Is this a lie, or is it what poker players call a bluff?

Perjury is serious business. But failing to bare your soul to some federal employee who knocks on your door should be a different case. The core problem is that there are too many laws and too many government agents asking too many questions.