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“Get Him to Lie So We Can Prosecute Him”: How to React When Law Enforcement Wants to “Chat”

Former National Security Advisor and 33-year military veteran Lt. Gen. Michael Flynn stands convicted of making false statements to government agents, in violation of federal criminal statute 18 U.S.C. § 1001, and awaits sentencing to up to five years in federal prison. Now FBI documents unsealed this week show that FBI agents acknowledged among themselves that one of their goals in interviewing Flynn was to “get him to lie so we can prosecute him.” Flynn’s criminal defense attorney argues that the documents prove Flynn was “deliberately set up and framed by corrupt agents at the top of the FBI.”

Aside from the significant political consequences which Flynn’s case may have, the latest revelation highlights the issues which clients must always consider when approached by federal agents who “just want to ask a couple questions.” Such interviews commonly take place when agents appear at the interviewee’s home or place of business, without fanfare, with agents assuming a casual, low-key, but decidedly firm manner.

Nearly everyone’s inclination is to accommodate government agents and to start talking out of common courtesy and a sense of good citizenship. The person who understands that the agents may view them not just as a witness but perhaps as a suspect often believes they can explain the truth of the matter to agents and correct the government’s misunderstanding. Even people who feel they may have something to hide often agree to speak with agents and attempt to “tell their side” or even “spin” the truth, only to find themselves in more trouble.

All of these responses, while perfectly natural, are wrong. Every “chat” with government agents occurs not only in the surface world of common courtesy but also in the parallel universe of the criminal justice system. Whether you know it or not, any time you speak with government agents, your words, actions, and even the look on your face can become evidence in a criminal case against you or someone you know. Because the stakes are so high in that legal world, the underlying reality is vastly more important than the surface world of appearances.

Therefore, the first rule when asked for a chat with government agents is: Don’t talk. Be courteous, express your general willingness to be helpful, promise to meet with them “tomorrow,” and get their business cards. Then call an experienced criminal defense attorney, who will engage with the government on your behalf.

In the event that you have already spoken with agents, it is essential that you immediately create a record of your interview and statement, because that is what your “chat” really was. The agents will leave your home and return to their office to write memos summarizing your encounter, describing your reactions and behavior, and paraphrasing if not directly quoting (or misquoting) your answers to their questions. Those memos will become part of the case file which government attorneys will rely on to decide how they view you and whether to prosecute you or someone else. It is essential that you provide your attorney with your truthful version of what the agents and you really said during the interview, no matter how uncomfortable it may make you to do so. Your own “debrief memo” in the hands of a skillful defense attorney can be a critical tool to make strategic decisions about your case. It may even become a vital element in your defense.

An adage from the Watergate era says, “It’s not the crime that gets you, it’s the coverup.”  In the federal criminal law, the “coverup” gets you even when no underlying crime occurred.  Lifestyle guru Martha Stewart was sentenced to federal incarceration not because she was guilty of the insider trading allegations for which she was investigated, but because she lied to the agents who interviewed her. Likewise, Lt. Gen. Flynn did not unlawfully “collude” with the Russian government, but he was convicted of lying to the agents who “dropped in” to his White House office for a “chat.”

Both Stewart and Flynn were convicted of violating 18 U.S.C. 1001, which among other things prohibits making a material false statement to a government agent. A violation of this federal law is a felony, punishable generally by up to 5 years in prison. The crime, commonly referred to as a “thousand and one” violation, is useful for prosecutors seeking to pile charges onto defendants guilty of other crimes, or in these cases to ensnare an otherwise innocent defendant who arguably should never have been a “defendant” at all.

Federal agents have this knowledge in mind whenever they “drop by” someone’s home or office for a “chat.” The vast majority of line agents and prosecutors are ethical professionals who abide by their oath to uphold the Constitution, but when the shadow of suspicion falls on you it is only natural for them to assume a position adverse to your interests. As the FBI notes in the Flynn case show, whether agents are merely letting a guilty person violate the law by lying in an interview or, in the rare case, agents are intent on “getting” an innocent person to violate the law “so we can prosecute him,” agents always have an ulterior motive to get you to speak with them. You are best served by declining to speak and immediately obtaining the counsel of an experienced criminal defense attorney.

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