Lessons from the Mueller Investigation: What to Do When the Government Comes KnockingFebruary 2019
This article is one in a series of articles on white collar defense and investigations.
It is important to understand that making materially false statements to government agents (FBI agents, SEC investigators, postal inspectors, IRS agents, etc.); while under oath at a deposition, trial, or before a grand jury; while testifying before Congress; or on a form, invoice, or even in a letter submitted to the government, is a felony and can lead to imprisonment.
Nowhere is this more evident than in the false statement charges brought over the past 1½ years in seven separate cases by Special Counsel Robert Mueller in his investigation into Russian interference in the 2016 Presidential election: false statements in Congressional testimony; false statements to FBI agents; false statements to representatives of the Special Counsel’s Office; false statements in a letter to Congressional Committees; and false statements in a lobbying form submitted to the Government. All these charges resulted in either guilty pleas or indictments.
What Are Your Rights?
If you find yourself face to face with the government, what are your rights, and what should you do? For example, perhaps FBI agents show up at your door as part of a criminal investigation to ask questions related to a client complaint about alleged misrepresentations:
- Do you have to participate in the interview? No.
- If you do talk, do you have to tell the truth? Yes, you must tell the truth, and if not, you can be prosecuted.
- If you do talk, do you have to correct the agents if you learn that they have some of their key facts wrong? Yes, you should correct the agents so that they can learn the true facts, and thus be able to conduct an efficient and fruitful investigation, or you could later be charged with withholding evidence.
- If you do talk, what is the risk to you? If you lie to the agents, or withhold significant information, you could be charged with one or more federal crimes.
When dealing with federal agents, or state or local agents, be mindful about what is said and what you sign because, as noted above, it is a felony to deliberately make false statements to the government, and you could be imprisoned if you do. It does not matter that your statement wasn’t under oath, that you were not involved in the alleged crime, or even that your statement did not deceive the government.
Voluntary Interview vs. Subpoena
It is important to remember that you are not legally required to participate in a voluntary interview. You may decline to do so and tell the agents to contact your attorney, or that you will retain an attorney who will contact them. A voluntary interview is just that – voluntary. A request for a voluntary interview is unlike a subpoena where testimony is compelled (even if you decide to “plead the Fifth”). If subpoenaed, you must appear, whether it be before a grand jury or at trial. You do have the Constitutional right to assert your 5th Amendment rights, which enables you to remain silent and refuse to provide any answers in response to the questions asked.
Importantly, invocation of your right to counsel, or your refusal to speak to the agents, can’t later be used against you at a criminal trial. Before deciding whether to submit to an interview, you are absolutely entitled to retain personal counsel, or, if required, speak to a supervisor or attorney at your company.
Key Rules to Follow
Don’t lie. Don’t panic. Be respectful. Listen carefully - it is better to listen than to talk. It is within your rights to postpone the interview. Obtain the agents’ business cards. After the encounter, take notes and record anything said by the agents. Strongly consider hiring an experienced white-collar defense attorney. Any statements you make during the interview can later be used against you, even if not made under oath. Moreover, individuals are often less careful or precise when not under oath. Finally, lying will not make agents go away. They will probably learn the truth (or already know the truth) and will almost certainly return.
Notifying Your Employer
Depending upon your company’s policies and procedures, you may need to advise your supervisor or company counsel about any contacts by the Government, particularly if the information being sought relates to the company itself. You are still free to retain your own counsel, however, and your counsel can reach out to the company. Recognize also that the company itself may want to interview you, and that you may be required to submit to the interview pursuant to company policies.
It is typically better to postpone a voluntary interview, and then retain a white-collar attorney who can speak to government representatives and prosecutors to determine what the case is about, prepare you for the interview (if that is the chosen route), and attend the interview with you. However, if you initially submit to the interview without an attorney present, and then lie to the agents, your options become very limited. The consequences can include your having to plead guilty to a crime, and the government may decide that it can no longer use you as a cooperator because you lied.
Finally, if you do decide to submit to a voluntary interview, or to testify under oath after being subpoenaed, you must, as they say, “tell the truth, the whole truth, and nothing but the truth.”
For more information on this issue and related matters, please contact:
© 2019 Herrick, Feinstein LLP. This alert is provided to inform clients and other parties about news and legal developments that may affect or interest them. The information is not intended as legal advice or legal opinion, and should not be construed as such.