As the plea agreement of President Trump's first national security adviser, Michael Flynn, attracts renewed attention this week because of Judge Emmet G. Sullivan's skepticism (Emmet means "truth" in Hebrew), it's worth mentioning that the federal crime to which Flynn pleaded guilty, Title 18 of the United States Code, Section 1001, is one that has been on our radar screen since the February 24, 2004, New York Sun editorial Martha Stewart and the Law.
That provision of the criminal code provides for a fine or up to five years in prison for anyone who "knowingly and willfully" makes any materially false statement or representation "in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States."
That New York Sun editorial said:
a liberal Supreme Court justice, Ruth Bader Ginsburg... in a concurring opinion in the 1996 Supreme Court case Brogan v. United States, warned of "the sweeping generality" of Section 1001's language.
Justice Ginsburg wrote: "The prospect remains that an overzealous prosecutor or investigator — aware that a person has committed some suspicious acts, but unable to make a criminal case — will create a crime by surprising the suspect, asking about those acts, and receiving a false denial."...
Justice Ginsburg wrote, "the Department of Justice has long noted its reluctance to approve §1001 indictments for simple false denials made to investigators."
Ginsburg warned that the law's "encompassing formulation arms Government agents with authority not simply to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a Government officer could prompt."
Brogan was about whether the statute clashed with the Fifth Amendment constitutional right to avoid self-incrimination, a right that goes all the way back to Maimonides.
To my mind a better outcome than judges striking down the law would be for Congress to repeal it, perhaps at the urging of President Trump, who has repeatedly and publicly warned against what he calls a "perjury trap." Similar to the situation with campaign finance law, a silver lining of the Trump-Mueller-Flynn-Cohen legal morass could be if it spurs the president and Congress to make changes to the laws that are being used to target them. Admittedly, it's a long shot. But it might be the best possible outcome. Maybe Justice Ginsburg could come testify before the Senate and House judiciary committees on the point. In the interview embedded below, she says that Congress is one potential intended audience of the dissents that she sometimes reads excerpts of from the bench.