Don’t Speak to the Feds

In the late 1980s, as federal prosecutors in Manhattan (where Rudy Giuliani was the U.S. Attorney) were leaking information to the media about the alleged misdeeds of investment banker Michael Milken, the Milken team asked to meet with federal officials. Milken and his lawyers believed that what Milken was doing was legal but perhaps misunderstood, and their stated purpose for meeting was to help “clear up” any misconceptions that federal agents and the media, which already had received illegal leaks from prosecutors about grand jury testimony, might have had.

After the meeting began, however, Milken’s team quickly realized that the feds were not there to discuss the fine lines and regulation of large-scale finance, but rather to charge Milken with as many crimes as they could. Because leaking grand jury information to the media is a federal crime, Giuliani’s prosecutors already had broken the law, so if any real criminals were in that conference room, they were employed by the U.S. Government.

We know how things turned out. The feds went after Milken’s father (who was in his 90s at the time) and Milken’s brother, letting Michael Milken know that they would find a way to throw both of them into prison (which would be a death sentence for the elder Milken) unless Michael Milken pleaded guilty. Faced with what really was a hostage situation, Michael Milken threw himself at the mercy of the court and ultimately went to prison for a couple of years. As one of the U.S. attorneys in the case bragged a few years later in a speech to law students at Rutgers University, the feds had criminalized what at worst were technical violations of ubiquitous securities regulations, violations that in previous years had not been considered crimes at all.

About 15 years later, Martha Stewart, who was being accused of insider trading regarding sale of some of her stock, met with agents of the Federal Bureau of Investigation to explain her side and to deny she was involved in illegal stock trading. The feds already knew she was not guilty of insider trading and never charged her with such. Instead, they charged her with lying to the FBI during the meeting, her “lies” consisting of denying she had not done what the feds already knew she had not done. Stewart also went to prison.

Today, we have the FBI “investigating” the charges that the Donald Trump campaign and Russian operatives colluded in order to defraud American voters and put The Donald into the White House. The investigation of a special prosecutor, led by former FBI chief Robert Mueller, wants to interview Trump and Trump has said he wants to meet with the Mueller team. Former federal prosecutor and now legal blogger Ken White tells Trump not to meet with Mueller and his agents, and I fully agree.

I have written about federal criminal law for more than a decade and have concluded that the term “honest federal agent” is an oxymoron. Federal agents, from FBI investigators to federal prosecutors, lie with impunity, as Judge Andrew Napolitano has written. It is in their DNA. Time after time, we have seen cases in which the feds lie and face no personal sanctions. Judges usually look the other way, although in the recent trial of Cliven Bundy in Nevada, a federal judge who previously had given the feds everything they wanted shut down the proceedings and dismissed charges because she had experienced her fill of having prosecutors and FBI agents lie to her and everyone else.

For whatever misconduct and deceitful behavior we have seen in the past from the FBI and federal prosecutors, we know now that at least some FBI agents tried to swing the election from Trump to Hillary Clinton, and that the FBI worked covertly with the Clinton campaign to wiretap Trump operatives. Furthermore, it is clear from the FBI memos recently uncovered that while FBI agents knew Clinton had broken the law regarding use of a private email server, they were loath to charge her with anything because they feared such an outcome would swing the election to Donald Trump, something they were determined to avoid at any cost.

Given this background of FBI misconduct, President Trump would be utterly foolish to meet with FBI officials who certainly are out to drive him from office – and have the legal tools to succeed. Explains Ken White:

The president is no mere witness. He is at least a subject, and likely a target, of the special counsel’s investigation. In federal criminal parlance, a witness is someone not suspected of wrongdoing who has useful information, a subject is someone suspected of wrongdoing who may well be charged if the evidence supports it, and a target is someone whose indictment is actively sought as a purpose of the investigation. When the feds interview a subject or target, their goal is not mere information-gathering or fact-finding or “clearing a few things up.” Their goal is the hunt. (Emphasis mine)

White further writes:

When special counsels or FBI agents ask questions of one of these powerful people, they are not fact-finding. They’ve already done their homework. They’ve already gathered facts—almost certainly many more facts than the interviewee knows. They are asking questions the answers to which they can already prove, hoping that the interviewee will tell a provable lie, and thus commit a crime, or at least lock themselves into a feckless story that ties their hands later. The law that makes it a crime to lie to federal investigators does not require the lie to fool the investigators for a nanosecond. A lie must be “material” to be criminal, but that only means that the lie is the kind of statement that could conceivably influence the government, not one that actually did. The FBI can roll up with irrefutable proof of something, ask the target a question hoping for a lie, collect the lie they wanted, and reap a felony conviction.

He continues:

Just as there are abyssal downsides for a target or subject to submit to a government interview, there are very rarely upsides. If you are the subject or target of a federal investigation, you’re not going to talk them out of it. They have the receipts already. Nothing you say, in and of itself, will end the investigation. You cannot “just clear a few things up.” You cannot impress them with your honesty. If they decide they don’t have a case, they will decide this based on other evidence—other witnesses, documents, and so forth—and not on your denials. Moreover, there’s nothing you can say in an interview that your attorney can’t convey to investigators informally. If some key fact will exonerate you, your attorneys can tell them without exposing you to charges.

To put it another way, federal agents are not interested in the truth unless it is their truth. As Milken and his attorneys found out, the feds were not honest brokers and were not interested in investigating to see if Milken had broken securities laws. Instead, the feds already had decided that they were going to throw Milken into prison, and that they just needed to find a legal avenue to meet their goal.

It is the rare modern federal investigator that looks to do anything but satisfy a pre-determined narrative. Because so much of federal criminal law is malleable and can be interpreted in a way that turns even legal actions into crimes, federal agents have a tremendous amount of power. Like Stalin’s notorious head of the secret police, Lavrentiy Beria who bragged, “Find me the man, and I will find you the crime,” if FBI agents and federal prosecutors want to charge someone with a crime, they easily can do so and if their target is unpopular with political, academic, and media elites, they face no scrutiny no matter how specious the charges.

Last year, I wrote that by hiring Andrew Weissman as his lead prosecutor despite Weissman having had to resign from the Enron prosecution because of dishonesty, Mueller was sending a clear signal that his was a win-at-all-costs investigation:

One should recall that the Enron prosecution was characterized by prosecutorial misconduct throughout the case, including subornation of perjury, lying to the judge and jurors (not to mention the public), and withholding exculpatory evidence. That Mueller would reach into that prosecutorial cesspool and pull out the one prosecutor who was deemed even too dishonest for that probe says clearly that Mueller is not going to allow truth to seep into his prosecution.

What do we know? We know that Robert Mueller and his crew despise Trump and would like nothing more than to drive him and everyone associated with him from the Oval Office. We also know that the FBI and federal prosecutors can charge just about anyone they choose with federal crimes that have lengthy prison sentences.

Ken White is correct. It would do Trump no good to meet with Mueller and his crew. To a person, they are not interested in what happened, but only what they want everyone to believe as to what happened. If Trump were to meet with them, he almost certainly would be accused of lying to the FBI no matter what he told the agents, and he easily could then be impeached, removed from office, and then charged with federal crimes. That is what Mueller and the media, political, and academic elites want to happen, and Trump can do nothing about it except do that thing he often finds most difficult to do: keep his mouth shut.

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