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Constitutional Opinions
Blagojevich and Scalia
If not for Justice Scalia, Rod Blagojevich would not have been convicted even on one count.
A federal jury convicted Governor Rod Blagojevich yesterday of one single count, remaining undecided on the other 23. And for that one guilty charge, we can thank Justice Scalia.
No, Justice Scalia had nothing to do with the Blagojevich case. But in a way, he had everything to do with it.
Governor Blagojevich was convicted of making false statements to federal agents. He told the FBI that he did not track campaign contributions and kept a “firewall” between his campaign and his official duties as Governor. In other words, federal agents asked him if he broke the law — and just like any child who is caught with his hand in the cookie jar — he said “no.”
Before 1998, this decision might have been different. Until then, federal courts routinely excused people for what they called the “exculpatory no.” If a federal agent came to your house and asked if you did something illegal, and you said “no,” you were off the hook for making false statements.
You could still be convicted of the substantive crime, of course, but simply saying “I didn’t do it,” couldn’t land you five more years in jail. Courts said it was too natural for a person to deny charges against them to find them criminally liable for it.
This “exculpatory no” doctrine was not put into the false statements statute by Congress. It wasn’t even in the legislative history. Congress never even considered it. Judges decided to create it because of the basic human instinct to deny, deny, deny.
That is until Scalia took on this judicially-created doctrine in a case called Brogan v. United States. In that case, federal agents visited a union officer at his home. “Have you ever received any cash or gifts from the company while you were a union officer?” they asked him. Naturally, he said “no.”
Later, they found out he had in fact received improper benefits. So he was convicted for making false statements to federal agents and appealed to the Supreme Court — after all, plenty of people were telling this very same lie and walking away under the “exculpatory no” doctrine.
Brogan argued that a defendant had to be excused for his denial to federal agents because the spirit of the Fifth Amendment would be violated when someone is “cornered” and given a “cruel trilemma”: tell the truth (and admit guilt), remain silent, or lie (and falsely deny guilt).
Scalia snapped back, saying lying is not an option. An innocent person, after all, would not face the same trilemma. The innocent person only has two options: tell the truth or remain silent.
“Whether or not the predicament of the wrongdoer run to ground tugs at the heartstrings, neither the text nor the spirit of the Fifth Amendment confers a privilege to lie,” Scalia wrote. The Fifth Amendment gives the alleged criminal the right to remain silent, but not to lie.
Brogan went on to argue that without the “exculpatory no,” prosecutors would pile on charges. They would, in effect, add five years to every sentence, because everyone is going to respond “no” to the question “did you do it?”
However, Justice Scalia said that there was no evidence of prosecutors doing that. And even so, it would not be hard for federal agents to tangle someone in a lie that would go beyond the protections of the “exculpatory no.” And if this were really a problem, it was for Congress to deal with, not the Court.
Without this decision in Brogan, Governor Blagojevich would not have been convicted of false statements. Instead, the jury would remain hung on all of the charges against him. Whether or not prosecutors piled on charges here, they have Justice Scalia to thank — 12 years later — for their one-count conviction.
Letter to the Editor View all comments (35) | Leave a comment
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Ken (Old Texican)| 8.18.10 @ 7:05AM
I simply cannot help but wonder if Mr. Obama had a finger in that pie.
Alan Brooks| 8.18.10 @ 9:40AM
One thing is for absolute sure: if Blago turns eventually (he is of course not out of the woods) he will go into the Witness Protection Program.
Have you guys ever thought of how many people in Chi-town Blago could bring down?
Patrick| 8.18.10 @ 10:32PM
Considering who would be in control of the Witness Protection Program, wouldn't that put him into even greater danger?
Tomas| 8.18.10 @ 7:33AM
OK. Let me get this straight.
The jury found enough evidence to convict on the charge that Blago lied when he told the Feds he did not break the law, but deadlocked on the law Blago broke when he lied to the Feds he didn't break the law the jury gave him a pass on.
Ewww--kay.
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Alan Brooks| 8.18.10 @ 9:36AM
You'd think there would have been a change of venue.
Tomas| 8.18.10 @ 3:58PM
Would have made sense, eh?
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Patrick| 8.18.10 @ 10:34PM
Oh, and Rahm or Holder couldn't rig juries elsewhere for silence?
Bob K.| 8.18.10 @ 7:38AM
If the FBI has any occasion to talk to the esteemed Justice they should ask him if he has ever made law out of whole cloth.
Ryan| 8.18.10 @ 8:46AM
This is essentially the same thing that held send Jim Brown - former Louisiana Insurance Commissioner - to prison, and I think one of the reasons Edwin Edwards finally wound up there.
I call it the "we know for absolute certain you did something illegal, but can't definitively prove it" case.
JimH| 8.18.10 @ 8:48AM
For a guilty person is the mere act of pleading not guilty then perjury?
jeff| 8.18.10 @ 12:59PM
No kidding. Since he was not convicted of the underlying crime how could he be guilty of lying when he said he didn't do it?
My head hurts.
Nunya| 8.18.10 @ 1:15PM
Actually, taken to the limit of logic, you would be correct.
Sickening where we've come as a country, is it not?
Paul D| 8.18.10 @ 1:59PM
JimH,
No. For at least two reasons I can think of:
1. The accused is not under oath when making the plea.
2. There are many elements to a crime and it is possible for someone to actually be not guilty when in their own minds they may think they are. In such a case, they would think they were lying, when they made the plea, but the reality is they were speaking the truth. It would therefore be too difficult to prosecute them for the false statement (since we can't read minds) if the circumstances of the underlying case showed they were in fact, not guilty.
Eric Damon| 8.18.10 @ 10:03AM
JimH asks a very good question, because if you are foud guilty of a crime after pleading not guilty, doesn't that mean you told a lie?
Personally, I don't think lying to the FBI should be a crime so long as they can lie to you in the course of an interrogation. What makes the lies of the feds okay, while the lies of an accused person not given under oath are a crime?
Dan Hirsch| 8.18.10 @ 10:06AM
Russ, Russ, Russ,
Haven't you been listening? It isn't a trilemma, it's a quadlemma! Don't you remember Hillary's testimony? (She doesn't!)
No, whatever they ask you, just say, "I have no recollection of ever doing that." If it worked for Hill' it ought to work for all of us.
No problem - too bad for you, Justice Scalia. I'm kind of disappointed in the lack of imagination here. Hoo-boy!
Leona| 8.18.10 @ 10:14AM
Schadenfreude is a nasty emotion but I'm enjoying another defeat (all be it transitory) for America"s Javet--Fitzgerald. The cream of the jest is that the retrial will keep the issue alive during the campaign.
It's all wrong anyway since what we have have is the criminalization of politics.
Joe Oliva| 8.18.10 @ 3:33PM
I thought politics was criminal.
fwb| 8.18.10 @ 10:56AM
Only problem is: THE FEDS CAN"T CONSTITUTIONALLY PUNISH N E 1 FOR LYING. They weren' t given authority to do so.
If the feds have the authority to set up punishments, why was it necessary for the Framers to grant the power to punish counterfeiting? Of course one cannot answer this except to say, the feds have no punishment powers that are not granted. It is all a lie and has been a lie for a couple of centuries. There is no de facto punishment power. If there were then the three grants in the Constitution are unnecessary and the Framers were just a bunch of stupid, ignorant b_st_rds who had no idea what they were doing.
The Framers didn't say "Heck we need to put in a simple example of the kinds of powers so lets write in the power to punish counterfeiting! Then the folks will know what kinds of de facto/implied powers the government has!" And the Framers didn't think punishing counterfeiting was a MAJOR power so it must be enumerated.
They knew that a government begun as tabula rasa with respect to powers (no powers at all B4 the Constitution) had to receive every power as a grant. And for every granted power, the lack of similar grant for say "lying" or not paying one's taxes, or... means the feds do not have such power. This separation of the power to make laws and the power to punish (police powers) is the REAL separation of power in the Constitution. The power to punish was left to the states and any discussion of police power from the founding and through the 19th century will prove. So, the feds make the laws and the states punish violations BUT the states have the authority to chose whether or not to punish based on the states decision as to the Constitutionality of the Congressional legislation.
We've been lied to, bent over, and ....
Bob K.| 8.18.10 @ 11:19AM
The dummys aren't the people who rendered the verdict. The dummys are the ones who argue legal niceties about legal idiocies!
I hope this is the point that Justice Scalia was making when he said what he did above. Other wise he must have got out of bed too early.
I thought the 5th amendment was about "testimony!" Since when is talking to an investigator testimony and why can it become perjury when talking to a federal investigative agent but does not become that when talking to an investigative agent from your local constabulary?
Horsebleep laws result in horsebleep verdicts. And if the dummys who make these laws doen't understand that then they are horses patooties!
Maddox| 8.18.10 @ 12:08PM
The fix for this case was in from the beginning when the investigation was ended early to protect the big guys. I find it funny they failed at making Blogo the fall guy for all involved.
loulou| 8.18.10 @ 1:34PM
What's all this brouhaha about Blago?
He's done nothing wrong. He just did what all Chicago politicians do, including Obama. Obama is involved--he wanted the Senate seat for his pal, Valerie Jarrett. Jessee Jackson wanted the Senate seat as well. Let's open up the investigation to include ALL involved. Why should Blago be scapegoated?
Purple Lips| 8.18.10 @ 3:29PM
I can see both sides of the debate:
1)There's been a long history of criminals from organized crime getting off on technacalities.
2)But, in many cases unscrupulous federal prosecutors abuse thier authority (See Martha Stewart. I'm no fan of hers. But she got the shaft. See also Scooter Libbey). If an FBI agent comes to your door and begins asking questions, what does one do? Even if you tell the truth, there is no guarentee that you didn't incriminate yourself (again see Scooter Libbey and the infamous Tim Russert depostion). Best to plead the 5th no matter what and get Plato Cacheris on retainer (that is, if you can afford him).
Bruce | 8.19.10 @ 5:32PM
As a 25 year veteran cop, now retired, your comment is close, but no cigar.
First, if ANY law enforcement officer comes to your home or business to ask questions and you offer an answer you are an idiot. Your answer should be - I will not answer any questions - here is the number of my attorney - and then provide it (or his card) and shut the door. PERIOD. Your rights under the 5th Amendment apply only to testimony under oath at trial - not in a police station, FBI office, or any other venue.
Pete| 8.18.10 @ 3:39PM
Clearly he was rewarded for taking the fall with the jury plant. Next up will be additional compensation in the form of money or title. Much like Osama's mosque statement, it would un-American to punish someone who the laws of this great country set free, right?
Shamus| 8.18.10 @ 6:09PM
This is an absurd law. Given that you'd be opening yourself up for charges, no one should ever make any statement to federal investigators.
DatsunMark| 8.18.10 @ 9:16PM
As a Libertarian I don't like this power the Feds have as per Justice Scalia.
Q: Federal Officer asks you: "Have you ever misrepresented yourself on your tax return?"
Out of the 7000 pages of tax code you think they're might be a difference of opinion to your innocense? This is a way to convict anybody of anything and as much as I despise Blago...this is a weak conviction. (Perhaps arranged as a hand slap deal by the Messiah?)
Blackwatch| 8.20.10 @ 4:16PM
Clam up. don't say a word without your own attorney present. don't be foolish--the FBI is the Government and they play for keeps.
PCP Smoker| 8.18.10 @ 10:42PM
It does seem odd to be convicted of lying when one is not under oath, or even under obligation to talk. Blago is creep but I find Fitzgerald, who previously convicted S. Libby of this particular "crime", even more of a menace.
Peace out.
froglegs| 8.18.10 @ 10:52PM
The disturbing thing is not that he got off -- sort of -- but rather that he was the only person (other than his brother) that got charged. It would have been much better to have waited and got the buyer of the senate seat and tried them both. A conviction would have been more assured.
FTM| 8.19.10 @ 12:12AM
This is the example that everyone needs to see and understand in it's fullest. In the event that you are charged of having committed a crime you will be tried by a jury of twelve people that are too stupid to figure out how to get out of jury duty.
If you're not a politician or a criminal convict, the top of the "Just-Us" pyramid, you don't have a chance in the "Just-Us" system. Both the politician and the criminal convict have perfect, unrestricted access to the "Just-Us" system at state expense.
If you're not a judge a lawyer or a cop, the middle tier of the "Just-Us" system you pretty much don't have a chance in the "Just-Us" system.
If you're like me, on the bottom tier of the "Just-Us" system you get pitched headlong into a state of a federal dungeon someplace to rot and nobody cares. I hold and maintain that if O. J. Simpson had been a janitor in L. A. instead of a multi-millionaire athlete that he'd be on death row right now awaiting execution and nobody would care.
First there was the sitting President of the United States that committed Purjury on TV in front of a federal judge, a felony crime punishable by up to five years in prison and nothing happens. You pull a stunt like that and your life is over. Now we have this mess. Like I said before, if you, at the bottom tier of the "Just-Us" system are accused of a crime you can expect blind, faceless, unaccountable treatment by the "Just-Us" system. If you're of the elite class some excuse will be made for your behavior and a couple days later you'll be old news. Either way, you'll be tried by a jury of twelve people that are too stupid to figure out how to get out of jury duty.
God Bless America.
Boston12GS| 8.19.10 @ 4:10AM
The reason this "lying to law enforcement" scenario applies in the case of questioning by Federal agents and not your local police is that there is a specific Federal statute on the matter: Title 18 of the U.S. Code Section 1001, which states that: “(a) Except as otherwise provided in this section, whoever, in any judicial matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry shall be fined under this title or imprisoned not more than five years or both.”
One is free to believe that this is a stupid statute or not, but if the former it's something to take up with Congress. Unless there's an issue of constitutionality, the court's are not (supposed to be) in the job of ignoring statutory law.
One is always free to answer any question by a Federal officer (or any other LEO) with the response, "I'd be glad to cooperate fully, as soon as I have my legal counsel here." No lying, no obstruction, no perjury.
Anna Keppa| 8.19.10 @ 4:15PM
It's not OK to lie to the FBI. But it's OK for them to lie to you. OTOH, a court the other day says it IS OK to lie that you've received the Medal of Honor. But it's not OK to hold yourself out as an attorney, when you are not one. Then there's gay "marriage": a federal court in Mass says the Defense of Marriage Act is unconstitutional because only states can define marriage. But then that Walker jerk in California strikes down as unconstituitonal as violating the 14th amendment a state referendum that attempts to define marriage. Like Bullwinkle, I am sooooooo confused!
Alan Brooks| 8.19.10 @ 5:33PM
"Patrick| 8.18.10 @ 10:32PM
Considering who would be in control of the Witness Protection Program, wouldn't that put him into even greater danger?"
I didn't think about that! Cripes, no wonder they call it the Criminal Justice System-- it IS criminal.
Chris Cotter| 8.20.10 @ 10:13AM
Even before Martha Stewart there are many cases where the incompetent FBI and Federal prosecutors have convicted ( maybe otherwise innocent) people of lying to a "Federal Agent" while failing to convict on the main charges. My understanding is that you could be guilty of this charge even if you did not know that the person you are talking to is a Federal Agent. In addition, a Federal Agent is not clearly defined. Could lying about your age to a census worker be a crime?. This makes it very easy for you ( or family members) to break the law and have government agents use it as leverage against you.
This law needs to be removed. Its Un-American.
Michele San Pietro| 8.22.10 @ 5:47PM
Antonin Scalia is really an excellent judge. I remember how he was slandered in 1986 when he was proposed for the Supreme Court. Some left-wing nuts tried to depict him as a fascist who wanted to limit the freedom of the press, which was utterly false. I think those scoundrels should be forced to publicly apologize and admit they were dead wrong, then they should hang themselves.