Talking To Law Enforcement Without Consulting Legal Counsel First Is A Bad Idea

There was a lot of furor recently over whether President Trump should talk to Robert Mueller’s team.  I said on Twitter that it would be a terrible idea to do so.  I took some heat for that.  But after reading this story from The Intercept and doing a little internet research I think my call was correct.  I strongly suggest everyone read this Intercept story on Reality Winner.  Typically, when the Feds or local police show up at your door to discuss illegal activity they already have a very good reason for wanting to talk to you.  I’m pretty sure they’ve done their homework and want to see what new information they can get from you.  Even if they don’t have enough evidence to charge you with an underlying crime they might still be able to catch you in a lie and it doesn’t have to be a material lie, just an innocent mistaken recollection.  The case of Reality Winner as detailed in The Intercept story shows how they can use false trust and a relaxed setting to coax out incriminating information.

Law enforcement wants to make you relaxed so that you feel more like talking.  They may also take the opposite tack and subject you to undue stress to see what they can get you to say.  In either case it is extremely dangerous for you.  In the case of Ms. Winner she was not initially interrogated at the station under the bright lights.  They talked to her in her own house in comfortable surroundings.   The “You like dogs, so do I” kinda conversation ensued.  She did not fully realize the danger she was in and that isn’t surprising.  In the end they got what they wanted out of her.

“Winner was cornered, literally. The agents were interrogating her in a small room at the back of her house and were blocking the exit, according to a statement Winner made to the court in late August (the government claims the exit was not blocked). She did not feel free to leave the room or stop the interrogation.”

“The transcript shows the agents, as they coaxed Winner into purportedly confessing a crime, suggesting that the matter wasn’t all that serious.  “I don’t think you make it a habit,” Garrick told her, referring to leaking documents. “You just messed up.” Taylor downplayed it further. “What we both think is that maybe you made a mistake,” he said. “Maybe you weren’t thinking for a minute. Maybe you got angry. … If that’s the case, then that makes us feel a little better, knowing that we don’t have a real serious problem here.”

Most of us don’t have legal training and are unaware of how law enforcement operates.   It is human nature to respond to these authority figures by answering them as best you can.  If you don’t want to tell them something you may be tempted to leave it out of your statement or lie about it.  Bad idea.  Chances are they already know.  Silence from the start is the best approach.  Even if you are totally innocent of the underlying crimes they can still get you for a “process crime” like lying to the FBI if you make a mistake in recalling an event.  That is why they like to ask the same things over and over again at different times and in slightly different ways.  At some point you may answer differently and then you’re in trouble.  Good people can make bad decisions under pressure.  Also, in today’s world there are so many complex laws that you may not even be aware you have violated one.  That is why it is best to cool off and consult an attorney first.  Here is a good write up on why you should consult legal counsel before talking.  The author makes some very good points that everyone needs to know.  Please understand, I’m not against law enforcement at all.  They have a tough job and do it well.  But getting convictions is the job of the criminal justice system.  You have your interests and they have theirs.  It’s nothing personnel, it’s just how the game is played.  You need to play smart.

I love the Constitution.  Here is one of the reasons why.   The Sixth Amendment reads:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”.[1]

Most countries around the world don’t offer their citizens these kind of protections.  Those of us living in the United States are very fortunate even if we don’t realize it because of all the accusations of police abuse.  But we have legal protections from the police and we should not throw them away.  People much smarter than you or I have gotten themselves prosecuted because they thought they could handle the questioning themselves.  My advice, don’t do it.  You don’t do your own surgery and you don’t rewire your house unless you’re an electrician.  So, why try to handle the law yourself?  Tell them you want a lawyer and don’t back down.

Another Dumb Law Attacking Free Speech Rights – VA Bill HB 1601

Here is another example of an elected government official using the law to intimidate and silence people engaged in unpopular speech.  The law sounds good to some on the service but when you dig deeper you see how awful it really is.  You see, after the recent unpleasantness in Charlottesville, VA many people are asking why certain groups are not designated by our government as domestic terrorist organizations.  Sounds like a reasonable question until you really start to think about it.  To make matters worse the ACLU has been intimidated by the Left into backtracking on it’s principles regarding free speech.  But that is another story.  In this particular case we have a state representative in Virginia who has decided it’s time to go after hate groups.  Delegate Marcia Price is trying to hatch this little gem in the state legislature.  Here is the link to the bill.  The bill seeks to define domestic terrorism and establish penalties.  Here is a summary:

Creates a new series of separate and distinct felonies and misdemeanors based on prohibited domestic terrorism activity and participation in such domestic terrorism activity. The bill provides a definition for an “act of domestic terrorism” and a “domestic terrorism organization.” The bill directs the Superintendent of the Department of State Police to promulgate regulations, to be updated annually, designating all organizations, groups, or associations meeting the definition of a domestic terrorist organization.

Most of the legal language was lifted from hate crime statutes and is nothing really new.  Since I’m not a lawyer I’ll let you read the bill for yourself and get right to my point.  Let’s look at why this is a free speech disaster.  It does several things to thwart the Constitution when misapplied.  And it will be abused – you can count on that.

  1. § 18.2-46.13.  Prohibition on assembly of members of domestic terrorist organizations.   

It shall be unlawful for three or more members of a domestic terrorist organization to assemble together with the intent of advancing some unlawful goal, mission, or purpose of the domestic terrorist organization.  Every person who participates in such an unlawful assembly shall be guilty of a Class 1 misdemeanor.  If any member of a domestic terrorist organization carried, at the time of his participation in the unlawful assembly, any firearm or other deadly or dangerous weapon, he shall be guilty of a Class 5 felony.

2.  § 18.2-46.14.  Prohibited domestic terrorist organization participation; penalty

(A) Any person who actively participates in or is a member of a domestic terrorist organization and who knowingly and willfully participates in any act of domestic terrorism committed for the benefit of, at the direction of, or in association with any domestic terrorist organization shall be guilty of a Class 5 felony.

3. § 18.2-46.15.  Prohibition on providing material support to a domestic terrorist organization.

(C) Whoever, by any means, directly or indirectly, unlawfully and willfully provides or collects funds with the intention that such funds are to be used, in full or in part, in order to carry out an act of domestic terrorism, shall be fined under this title, imprisoned for not more than 10 years, or both.  For an act to constitute an offense under this subsection, it shall not be necessary that the funds were actually used to carry out a predicate act.

4. § 18.2-46.17.  Local law enforcement reporting of acts of domestic terrorism

This bill effectively shuts down any group unfortunate enough to get labeled as a terrorist organization.  But why is this a problem you may ask?  Don’t we hate terrorists?  Well, what exactly does it take to get you labeled a terrorist?  I won’t ever bother to argue the obvious, that this is an anti-Richard Spencer, anti-Alt Right bill.  So, let’s try and see what makes a terrorist in the eyes of Delegate Price.

Act of domestic terrorism” means (i) an act of violence, as defined in § 19.2-297.1 or (ii) any violation of §§ 18.2-5218.2-52.118.2-5318.2-53.118.2-56.118.2-5718.2-8318.2-108.118.2-11918.2-12118.2-12718.2-12818.2-13718.2-13818.2-14618.2-147,18.2-186.418.2-27918.2-28218.2-282.118.2-287.418.2-28918.2-30018.2-308.118.2-308.218.2-308.2:0118.2-31218.2-42318.2-423.0118.2-423.118.2-423.2, committed against a person or his property with the intent of instilling fear or intimidation in the individual against whom the act is perpetrated because of race, religion, national origin, gender, sexual orientation, or disability, or that is committed against such person for the purpose of restraining that person from exercising his rights under the Constitution or laws of this Commonwealth or of the United States.”  

Now how is the going to be enforced?  Let’s see..

Act of domestic terrorism” means (i) an act of violence.. committed against a person or his property with the intent of instilling fear or intimidation in the individual against whom the act is perpetrated because of race, religion, national origin, gender, sexual orientation, or disability or that is committed against such person for the purpose of restraining that person from exercising his rights under the Constitution or laws of this Commonwealth or of the United States.”  

Congratulations, you just locked up Antifa and anyone else whose rally turns into a brawl.   The language in this bill can be interpreted to apply to almost any group involved in violent clashes, even leftist groups.  Violence used to shut down Constitutionally protected rights, like speech, can land the protesters in hot water.  This would apply, in my opinion, to groups like Antifa.  The intent is to use C’ville as a reason to label people (on the right never the left) as violent terrorists.  However, any time two opposing groups get together violence has a potential to develop especially when the police stand by looking like they did in C’ville.  So, a group shows up to say provocative thing about race or religion (protected by the 1st Amendment) when they suddenly clash with counter protesters.  Violence flairs up and an innocent person is harmed or killed.  Now you have calls to make the offending group holding the rally (not those who may or may not have initiated the violence – it can be hard to tell who threw the first punch so to speak) a “terrorist” organization.  Anyone who gave money or support or  joined the group is now a felon or facing felony charges at least.  The group or even offshoots of the group will be unable to rally, organize, or raise money.  Americans could then be imprisoned for the groups they join or give money to even if they themselves have done nothing violent and committed no crimes.  The actions taken by others in your group can make you a criminal.  This law is unnecessary at the very least.  Current law works well in our free and open society.  It keeps groups like the Klan from openly organizing, funding, and carrying out violence.  They may inspire it, but it’s usually carried out by lone actors independent of any organized group.  The hate groups know that if they facilitate the violence they will be held criminally and civilly liable.  Attempts to punish groups for “inspiring” violence run into 1st Amendment problems.  If there is no direct call to violence only a vague insinuation open to interpretation then the law should be on the side of the speaker.

Bills like this are what authoritarians want to enact into law around the country to criminalize their opponents and silence the opposition.  I fully expect to see more bad law like this proposed in the coming years.  Let’s hope the Courts throw this nonsense out before we find ourselves living in a police state where freedom of association and speech exists on paper only and in reality can land you in prison.