False Statements

The investigation into who leaked the identity of Valerie Plame to the press has recently turned toward whether Deputy Chief of Staff Karl Rove told President George Bush the truth about his involvement in the affair.^[1] Based on the vehement assurances two years ago by Whitehouse spokesman Scott McClellan that neither Karl Rove nor Vice-Presidential Chief of Staff Lewis “Scooter” Libby were involved, speculation has mounted that Mr. Rove may not have told the President the truth.^[2] If not, there could potentially be a prosecution of Mr. Rove under the Federal false statements statute.^[3]

Making false statements to the executive branch is a crime under 18 U.S.C. § 1001(a). It states that it is a crime for a person, in any matter within the jurisdiction of the executive, legislative, or judicial branch, knowingly and willfully:

• falsify, conceal, or cover up a material fact by any trick, scheme, or device;^[4]
• make any materially false, fictitious, or fraudulent statement or representation;^[5] or
• make or use any false writing or document knowing that it contains materially false, fictitious, or fraudulent information.^[6]

The punishment for a violation of section 1001(a) is a fine, imprisonment for up to five years, or both.^[7]

According to Yost, “simply misleading someone isn’t enough to bring a prosecution,” and Mr. Rove would have to say something more than “No” to an inquiry from the President whether he was involved.^[8]

While Mr. Yost’s source, Professor Peter Henning, is a former federal prosecutor and the author of a law school textbook on white collar crime,^[9] we respectfully disagree because the United States Supreme Court case Brogan v. United States^[10] would suggest otherwise.

Brogan explored the “exculpatory no” doctrine which “presents the question whether there is an exception to criminal liability under 18 U.S.C. § 1001 for a false statement that consists of the mere denial of wrongdoing.”^[11] The defendant in this case was investigated by agents from two federal agencies, and when they asked whether he had received cash from a company in an illegal manner, he replied “no,” which turned out to be false.^[12] He was indicted for making a false statement, and he challenged the indictment by attempting to have the “exculpatory no” doctrine applied.^[13] The Court refused to recognize an “exculpatory no” defense, noting that simple denials of guilt do pervert governmental functions.^[14] Furthermore, Fifth Amendment concerns are not presented by denying an “exculpatory no” doctrine, since the Fifth Amendment “allows a witness to remain silent, but not to swear falsely.”^[15]

Therefore, a mere “No” uttered by Mr. Rove to President Bush could create criminal liability.

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[1] Pete Yost, What Exactly did Rove tell the President?, Associated Press, Aug. 11, 2005, also available here.
[2] Id.
[3] Id.
[4] 18 U.S.C. § 1001(a)(1).
[5] Id. § 1001(a)(2).
[6] Id. § 1001(a)(3).
[7] Id. § 1001(a).
[8] Yost, supra note 1.
[9] Id.
[10] 522 U.S. 398 (1997). It should be noted here that Brogan deals with an earlier form of section 1001, but the Court makes it clear that subsequent Amendments have not changed the thrust of their holding. Brogan at 413 n.4 (Ginsburg, J., concurring).
[11] Id. at 399.
[12] Id. at 399-400.
[13] Id. at 401.
[14] Id. at 401-02.
[15] Id. at 404-05 (quoting United States v. Apfelbaum, 445 U.S. 115, at 117 (1980)).