One of the favorite crimes of federal prosecutors just got harder to prove. Under 18 U.S.C. § 1001, it is a crime to willfully make a false statement to the federal government.
This crime has been used in the past to prosecute people who lie about seemingly incidental matters in interviews with federal law enforcement officers, even when they did not know doing so was a crime. U.S. Supreme Court Justice Ruth Bader Ginsburg noted that the law gives government “extraordinary authority” to “manufacture crimes.” (NLJ).
In briefs filed with the Supreme Court this year, the feds have apparently limited the scope of this law by requiring proof that the defendant made a false statement with knowledge that his conduct was unlawful. (See this brief at the top of page 12). This change applies to 18 U.S.C. § 1035 (false statement for health care benefits) as well.
Ultimately, this about-face means that not every false statement to a federal official or on a federal form is a crime. Rather, these laws apply only to people who knew that they were committing a crime by lying.
Requiring the government to prove intentional law-breaking is an important traditional safeguard against criminalizing innocent conduct, and the Dept. of Justice should be commended for recognizing its importance. The key now is to educate prosecutors, defense lawyers and judges about the change.