It is a federal crime to provide false statements in any matter within the jurisdiction of the executive, legislative, or judicial branch, with some limited, but important, exceptions.* If one is within jurisdiction and willingly and knowingly makes a false representation, uses a false document, or conceals by trick a material fact, one is subject to 18 U.S.C. Â§ 1001. Violation of Section 1001 can result in up to five years in prison. It is similar to perjury, but one does not need to be under oath, so its application is broader and, in a very specific way, insidious. Read on to find out why.

The vast majority of applications of this statute are entirely fair and reasonable. But there is one circumstance where it can be exploited to reach unfair results. This is known as the “Exculpatory No” Doctrine. This doctrine descibes a situation where a federal agent asks if you committed a crime, and you have, but you say “no.” This situation falls within the literal reading of the statute. It is a simple syllogism: “No” is a statement. That statement was false. Therefore, you have made a false statement, which brings you under the aegis of Section 1001. There are a multitude of problematic situations which may arise if the Exculpatory “No” is considered a false statement, many of which have been laid down by a concerned Justice Ginsburg in Brogan v. United States. Let’s examine some of the particular issues that flow from this application.

First, this gives a sickening degree of power to prosecutors or federal agents to generate felonies. This can take multiple forms. A prosecutor may already know and have proof of Person A’s guilt, although Person A does not know that the prosecutor has such strong evidence. The prosecutor can purposesly ask Person A questions about his involvement with criminal enterprises assuming he will deny involvement like any normal and rational person would. Soon as Person A says “No,” he just tacked on potentially five more years to his sentence. What purpose does this serve? The prosecutor was not misled by Criminal A’s falsehood. In this scenario it is purely an ancillary crime which seems to serve no public good besides allowing prosecutors to arbitrarily increase someone’s sentence.

Another hypothetical: A prosecutor can only prove two of the four elements necessary to convict Person B of a crime. Without proof of the remaining elements, there can be no conviction. The prosecutor feels she knows that he is guilty, despite the fact she does not have enough proof, so she decides to trick him into committing a Section 1001 felony so she can mete out some punishment. The prosecutor asks Person B about whether he committed the elements she does have proof for and Person B predictably denies any involvement. Now the prosecutor has a federal felony on her hands, creating it out of thin air, and she can achieve her desired punishment without having to actually prove anything about the underlying crime. This strikes me as even less fair than the previous example. Instead of adding on more time, prosecutors can manipulate the alleged criminals into committing a new crime and then use the new crime as a substitute for what they couldn’t prove otherwise.

A second concern is that federal agents and prosecutors can lull people into exclaiming exculpatory “no’s” by creating informal situations in which the alleged criminal will not realize the severity of his actions. In this scenario, a federal agent stops by to chat with Person C about alleged corruption at their workplace. Person C gives the federal agent the information he wants to know, but leaves out any details about his own involvement. At the end of the interview, which seems to Person C to be about others, not about himself, the federal agent asks if Person C was involved in any illegal shenanigans at the office. Person C, thinking that he is not the subject of the investigation and does not want to implicate himself for no reason, denies any participation. The federal agent, knowing all along that Person C was involved, has just tricked Person C into committing another felony. Now, if Person C knew that there were severe consequences to his lying, he may have evaded the question entirely or refused to answer or even told the truth. If Person C was able to have an attorney present who understood the consequences of saying “no,” he could have advised his client to proceed differently. It was only the lulling effect of the informal chat that tricked Person C into denying involvement, while in a more formal setting, like a deposition, Person C would have been able to make more educated choices. Does it strike you as unfair that a five year prison sentence could hinge on such vagarities?

Finally, Section 1001 can be used as a way to create federal jurisdiction when there was previously none. Federal jurisdiction is created in one of two ways: you either have litigants from multiple states or you have someone charged with a federal crime. Otherwise, claims are litigated at the state level. In this final scenario, someone is convicted of violating a state law, but the FBI comes in to question the person. If that person denies their involvement when they really were involved, all of a sudden there is a federal felony and the federal government, with all its resources, can now prosecute. Venue and jurisdiction battles are frequently fought because where a case is litigated can confer specific advantages or disadvantages depending on the nature of the case. Section 1001 gives the federal government an ace up its sleeve to bring matters otherwise fully within a state’s jurisdiction to the federal district courts.

Until the Supreme Court ruled on the issue in Brogan, most federal circuits created an exception for “exculpatory no” situations. Those judicial creations are no longer valid. Luckily, the Department of Justice does not prosecute Section 1001 violations in these circumstances according to their internal guidelines. They understand that there are troubling overtones to such prosecutions that seem to strike at a fundamental unfairness. In other specific circumstances, the Fifth Amendment would protect one, and it seems illogical to deny similar protections in more informal situations. But DoJ guidelines are merely that, guides for their attorneys. They do not have the force of law and never will. Congress should amend the statute to explicitly carve out an exception for “exculpatory no” scenarios in order to preserve some portion of whatever fairness remains in the criminal justice system.

*The two exceptions are for certain statements made by parties or attorneys in judicial proceedings and certain statements made in connection with Congressional hearings.

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Written by Todd M