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Many years ago, as federal prosecutors, we often “invited” subjects to our office for interviews. Our “guests” often lied�provably so. Those lies were federal crimes�”false statements” under Title 18, � 1001 of the U.S. Code. But typically my office would not prosecute over such statements. Indeed, in the late 1970s and early 1980s, the U.S. Department of Justice (DOJ) had a policy of generally not prosecuting unless the interviewee requested the interview and he falsely accused another person, leading to a wild goose chase. But nowadays, prosecutors must as a matter of DOJ policy charge the most serious offenses available�and false statements may fit the bill. In pre-Ashcroft days, it was my practice (though not official DOJ policy�we had some discretion then) to give individuals my personalized “hip pocket immunity.” Neither my colleagues nor I took ourselves so seriously as to be “outraged” that a witness had the audacity to lie to us. I’d make it clear that I knew they were lying, but that I expected truth before the grand jury, hand them a subpoena and warn them about perjury. “Next time,” I’d tell them, “your false statement won’t be ‘on the house.’ “ Sometimes it worked, sometimes not. But even when it didn’t work, the government gained from such interviews; we learned names, places, dates and transactions�invaluable leads, even if nothing else. More importantly, from the subject’s answers we learned his or her vulnerabilities as a potential witness, and maybe the vulnerabilities in our cases. Sure, we were frequently lied to-just as gumshoe detectives often are. One can learn something valuable even from a lie. These days, the game has changed� dramatically. DOJ has changed its practice and policy severely. False Statement prosecutions under � 1001 are now commonplace. Martha Stewart is the best proof of it. Through the vehicle of the Stewart case the government boldly stated, more than anything, that if you lie to prosecutors and agents in an office interview�one that you are not compelled by law or subpoena to attend�it will prosecute you for that lie, even if it can’t prosecute you for a substantive crime. And even if the interviewee doesn’t lie in the interview, but was nevertheless unable to persuade the prosecutor not to indict on the substantive offense, the truth he told during the interview might so hamstring his trial defense that he would probably be forced to plead guilty at the end of the day. Under the current proffer agreements that accord the interviewee use immunity, the government may still use damaging leads gained from the interview. And the prosecutor may harshly cross-examine the interviewee using inconsistencies between his trial testimony and the interview statement. He also could indict the interviewee based on a provably false statement made during the interview. The Stewart interview wasn’t protected by a proffer agreement, but she could have been indicted for the statement even if there had been one in place. Actually, the U.S. Supreme Court, in Brogan v. United States, held in 1998 that a prosecutor may even indict for a mere false “exculpatory no” given to a government agent. (Interestingly, in the Stewart case, the government’s principal cooperator, Douglas Faneuil, who lied to authorities in his early interview, pleaded guilty to an innocuous misdemeanor, not felony false statement. Perhaps a lack of evenhandedness-or disingenuousness-in the government’s policy.) Tying lawyers’ hands, too Most disturbing, under recent interpretations of some prototype proffer agreements, the lawyer for the interviewee (now defendant), may not even make an argument to the jury or the judge that is inconsistent with the statement in the office interview. For example, as interpreted, a lawyer may not even argue to the jury from the evidence, as he otherwise properly might, that his client was not at the scene of the crime, if in the interview the client had admitted to the prosecutor that he was. In many respects, the die is cast for the interviewee once he gives the interview. The upshot? In bringing false-statement prosecutions and demanding one-sided proffer agreements, DOJ inhibits the bar from allowing its clients to be interviewed in the first place. No interview�no false-statement prosecution, no emasculation of potential trial defenses. Sure, without consenting to such interviews, some individuals will deprive themselves of the opportunity to talk the prosecutor out of an indictment or into a favorable plea offer. That’s not an insignificant issue with which to reckon. Still, the government will probably lose more. It’s in the government’s interest to encourage targets to talk prosecutors out of ill-conceived prosecutions when the target alone has the probative exculpatory facts to supply. More important, prosecutors should want to hear from every corner in an investigation-even a prevaricator who likely has at least something to contribute to the calculus involved in making prosecution decisions. In the name of the Platonic goal of absolute truth, DOJ may be cutting off its nose to spite its face. Joel Cohen, a former federal prosecutor, practices white-collar criminal defense law at New York’s Stroock & Stroock & Lavan, and teaches professional responsibility at Brooklyn Law School.

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