Perjury, Schmerjury—Why It’s High Time for the Feds To Give Perjury Prosecutions a Rest

With the conviction of elite track coach Trevor Graham, the government scored yet another victory in it’ war on elision. Graham joins a legion of high-profile defendants (Scooter Libby, Lil’ Kim, Martha Stewart, etc.) who have been prosecuted and convicted not for the conduct at the center of the investigation but for being less than fully candid about some aspect of it. And though this might sound like a fine thing, at some point the general publici s going to finally start to listen to the age-old advice of criminal defense lawyers everywhere—don’t talk to the cops. Don’t talk to the feds. Not ever. Not about anything. Ever.

Federal agents, like their state law counterparts, have enormous power to make people talk. They use intimidation, the threat of public humiliation, and a myriad other tactics to get reluctant people sit down with them for “voluntary interviews.” To get a sense of what I’m talking about, recall the scorn heaped on the Ramseys after their child JonBenet was murdered. Then again, had John and Patsy talked, there is little doubt that innocent or not, they’d have wound up in a jail cell somewhere.

By using perjury the way Elliot Ness used tax evasion, the federal government runs the risk of a backlash. This is especially true when (as in Martha Stewart’s case) the statements at issue were made not during depositions or trials, but rather in informal, almost casual conversations with agents (some of which were never even recorded or transcribed). Given that even a fairly minor misstatement made in the course of a casual chat with a federal agent can lead to a prison sentence, the day may soon arrive that normal middle-class citizens begin to adopt attitudes toward talking to the police that mirror those long held in poor communities of color: Just don’t. And that will start to really hamper investigations and genuinely harm law enforcement. 

Time to throttle back on the perjury cases?  High time, I think.