DOJ Relents on False-Statements Policy

In 1998, Justice Ruth Bader Ginsburg warned that the federal false-­statement statute (18 U.S.C. 1001) gives prosecutors power to manufacture crimes. Agents having trouble making a case against a suspect can ask a question to which they already know the answer; if the suspect responds falsely, the agents can use his answer as leverage to gain cooperation or as a substitute for the offense the agents could not prove. Because no oath is required and interviews typically occur under informal circumstances, investigators can lay a trap and often a suspect will walk right into it.

The Department of Justice has just made it a little harder to use § 1001 in this fashion. On March 10, the department told the U.S. Supreme Court that it now interprets the “willfully” element of § 1001 to require proof that the defendant knew his conduct was unlawful. The department announced its new view in briefs opposing certiorari in two cases, Ajoku v. United States and Russell v. United States, involving convictions under a special false-statement statute, 18 U.S.C. 1035, that was modeled on § 1001 and prohibits a wide range of false statements relating to medical care.

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