A number of Trump administration figures are under investigation for having contacts with Russian officials. Former National Security Advisor Michael Flynn allegedly had repeated contacts with the Russians during the Trump campaign and transition. Flynn was forced to resign and has asserted his Fifth Amendment right to remain silent in response to the ongoing inquiries.
At his confirmation hearing Attorney General Jeff Sessions denied having any contact with Russian officials, but he later admitted to having several meetings with the Russian ambassador. This led to allegations that Sessions may have committed perjury during his hearing testimony.
Most recently there were reports that Trump’s senior advisor and son-in-law Jared Kushner allegedly met with Russian officials about setting up some back channel communications through the Russian embassy. Kushner also is alleged to have had multiple contacts with other Russians, including a Russian banker closely tied to Russian intelligence.
The FBI, Special Counsel, and several Congressional committees are now investigating these various contacts. Some may turn out to be criminal, others may turn out to be simply unwise, and others may be perfectly innocent. But most have one thing in common: the administration officials who had the Russian contacts apparently failed to disclose them when they applied for a security clearance.
Even innocent contacts could result in criminal prosecution if people lied about them or failed to disclose them when required. The charge would be false statements, a key workhorse in the white collar crime stables.
The Disclosure Requirement: Form SF-86
All those seeking a security clearance and access to classified information are required to complete a Standard Form 86, or SF-86. This lengthy (over 100 pages) questionnaire is painfully familiar to many government employees. The federal government uses the information in the SF-86 to conduct a background investigation and determine whether access to classified information is appropriate.
The SF-86 requires you to report detailed information about your personal background, employment history, education, marital status, family members, places you have lived, travel, and much more. It also asks about foreign contacts and foreign activities.
In particular, question 20B.6 asks whether the applicant has had any contact at all with any foreign governments or their representatives in the past seven years. If the answer is “yes,” the applicant must provide detailed information about those contacts.
All high-level members of the new administration would have filled out an SF-86. The allegation concerning Kushner, Flynn, Sessions, and others is that when completing the form they failed to report their various meetings with Russian officials.
The Relevant Statute: False Statements
The instructions for the SF-86 include the following warning:
The U.S. Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony which may result in fines and/or up to five (5) years imprisonment.
Many of us have seen similar warnings on other government forms. But what exactly is title 18, section § 1001, and what does it require the government to prove?
False statements, 18 U.S.C. § 1001, makes it a crime to knowingly and willfully –
1) falsify, conceal, or cover up by any trick, scheme, or device a material fact;
2) make any materially false, fictitious, or fraudulent statement or representation; or
3) make or use any false writing or document knowing that it contains any materially false, fictitious or fraudulent entry,
in any matter within the jurisdiction of one of the three branches of the federal government.
The false statements statute is extremely broad. It potentially applies to virtually any lie to the federal government. Unlike perjury, you don’t have to be under oath. The government does not need to be harmed or to have relied on your statement in any way. The lies may be written (as on an SF-86) or verbal. (Martha Stewart and Scooter Libby were both convicted under 1001 for lying during FBI interviews.)
Sometimes the false statement itself is part of the central misconduct in a case. If I lie on an application for a government grant or contract, the lie is an integral part of my criminal scheme to cheat the government out of something. False statements may be one of the statutes used to prosecute such a scheme, along with mail or wire fraud or other appropriate charges.
But sometimes a violation of section 1001 falls into the category of a cover-up crime, similar to perjury or obstruction of justice. In such a case the false statement is a secondary offense that conceals some other underlying misconduct. That’s the allegation in the investigations involving Trump officials. The claim is they lied on the SF-86 in order to conceal underlying contacts with the Russians that may have been improper — or at the very least embarrassing.
False Statements on a Security Clearance Form
To convict under section 1001, the government must prove the following elements beyond a reasonable doubt:
1) The defendant made a false statement, used a false document or writing, or concealed facts through a trick, scheme, or device;
2) The false statements or concealed facts were material;
3) The statement or concealment took place in a matter within the jurisdiction of one of the three branches of the federal government; and
4) The defendant acted knowingly and willfully.
Let’s consider how these elements would be met in a hypothetical case involving failure to disclose foreign contacts on an SF-86.
1) False Statement, Writing, or Concealment
The first requirement is that the statement be false. That may seem a bit obvious. But as it is with the related crime of perjury, the requirement of actual falsity is important. It means there is no room for ambiguity or uncertainty. If a question or answer is open to different interpretations, a statement that initially appears false may not be.
The statute prohibits making false statements and using false documents. The SF-86 asks whether the applicant has had any contact with foreign representatives in the past seven years and asks the applicant to check “yes” or “no.” Checking “no” could be a false statement under section 1001(a)(2) if in fact such contacts had occurred.
Section 1001(a)(1) also prohibits concealing material facts through a “trick, scheme, or device,” even in the absence of outright lies. This portion of the statute likely would also come into play in a case involving failure to disclose meetings with foreign officials. The SF-86 requires the applicant to list the details about any foreign contacts. Failing to list those meetings could qualify as concealment of material facts.
Because there is no general duty to speak to the government, the concealing material facts theory may be used only when the defendant is under a duty to disclose the facts in question. In this case the obligation to disclose is readily found in the requirements of the SF-86 itself. Those who choose to complete the application are required to provide all relevant information.
As with the related crime of perjury, the false statements or concealed facts must be material. The law does not punish lies that are trivial or irrelevant.
Materiality is defined very broadly. The statement need only have the potential to affect the decision of the agency to which it is made. There is no requirement that the statement actually affected any outcome, that it was believed, or that the government relied on it in any way. In other words, materiality is judged based on the nature of the statement, not on any actual impact that it had.
In this case materiality would be clear. A primary purpose of the SF-86 is to reveal any potential foreign entanglements that might pose a security risk. Information about contacts with Russian officials, especially so close to the election, would undoubtedly have the potential to affect the decisions of those doing the background investigation. Lying about or concealing that information could therefore violate the statute.
3) Within the Jurisdiction of the Federal Government
The statement or concealment also must be in a matter within the jurisdiction of one of the three branches of the federal government. “Jurisdiction” is broadly defined. It simply means the agency or office to which the statement is made has some authority to act on the matter in question.
This requirement serves to establish a basis for federal criminal jurisdiction. The lies must be in connection with business of the federal government. Lying to your boss, or your neighbor, or even to a state agency is generally not going to fall within the statute.
In this case the jurisdiction requirement would be easily satisfied. The SF-86 is submitted to the Executive branch, which has the authority to act on the information and investigate whether to grant a security clearance. Any statements or concealment on the SF-86 are plainly in a matter within the jurisdiction of the Executive branch.
4) Knowing and Willful
As with so many white collar offenses, the intent requirement is where the rubber meets the road. In any case involving an allegedly false SF-86, the key issue would be proving the defendant’s state of mind.
The knowing and willful requirement means the lies or concealment must be intentional and done with a bad purpose. The statute does not apply to mistakes or inadvertent failures to disclose. It doesn’t apply if a person was simply confused or misunderstood the question. It doesn’t apply if he failed to disclose the relevant information because he forgot it.
Courts generally interpret the “willful” requirement to mean the defendant knew not only that the statement was false but also that making the false statement was unlawful. That would not be much of a hurdle in an SF-86 case. The form itself warns that false statements or concealment can be a criminal offense. Any applicant would certainly know that foreign contacts are critical information when it comes to granting a security clearance.
The Defense: Lack of Criminal Intent
At this point it may be undisputed that SF-86 forms filed by various Trump officials are inaccurate. But filing a false form is not automatically a crime. The issue will be why the information was missing. The government would bear the burden of proving beyond a reasonable doubt that a defendant deliberately sought to lie about or conceal the foreign contacts.
Attorney General Sessions has claimed officials conducting his background investigation told him he did not need to report some of his contacts with foreign officials. If this is true, it could be a defense. It suggests Sessions did not act willfully because he did not believe failing to include that information was unlawful. Even if the advice were incorrect, that would not matter if Sessions believed he was properly filling out the form.
Jared Kushner apparently has claimed he forgot about some of his meetings with Russian officials. If he omitted foreign contacts because he honestly forgot about the meetings, that too would be a defense. Again, it demonstrates a lack of intent. If he did not recall the meetings when he completed the form, then he did not willfully conceal the information.
Michael Flynn may also claim he forgot about various Russian contacts. Or he may claim he did not believe they needed to be disclosed. His position is unclear at this point, because he has declined to speak with investigators unless he is granted immunity.
To prove a crime the government would need to establish that a defendant was not forgetful or acting on outside advice but was deliberately and wrongfully trying to conceal the information. Absent some direct evidence (such as statements by the defendant), the proof may consist of circumstantial evidence that ultimately makes innocent explanations completely implausible.
Whatever the outcome of the investigation into the Russian contacts themselves, the potential false statements are a separate investigative track. Even if the underlying contacts end up being perfectly innocent, lying about those contacts could be criminal.
People in D.C. are familiar with the maxim that sometimes the cover-up is worse than the original misconduct. The Independent Counsel will determine whether that’s the case here.
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