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.

Government Case Blurs Line Between National Security Investigation and Ordinary Crime

The Washington Post has run a good story showing how easy it can be to blur the lines between national security and ordinary criminal investigations. It seems the FBI obtained a secret search warrant on national security grounds to search the home of Keith Gartenlaub, a Boeing employee. The FBI suspected him of spying for the Chinese in an effort to get China information on the C-17 military transport plane. In the process of searching for evidence of spying the agents found child pornography on four hard drives. Spying charges were never brought, but the pornography charges were used instead. The net result is that Mr. Gartenlaub has been convicted of a crime without proper due process as afforded by the fourth amendment to the Constitution. He was not allowed to see the warrant against him and challenge its validity. Any other defendant would have had that right. What makes this even more disturbing is the apparent weakness of the government’s case. A forensic expert said there was no credible evidence the pornography was ever viewed by anyone using the computer. Another forensic expert said there was no evidence of the illegal material ever being downloaded to the computer leading to speculation it was copied there – but no one can say for sure by whom. Two of the four drives in question had been at a beach house where numerous people had access to them. Another disturbing aspect of the case is the fact that the FBI obtained the warrant to search his personal email because he was the “nationwide Unix military administrator for Boeing.” Two other Boeing employees said there was no such position. When the case is viewed in its totality it really seems that the FBI was on a fishing expedition looking for any evidence of spying no matter how unlikely they were to find it. It even agreed to drop the pornography charges if he would talk about the C-17. When he denied the espionage charges (and everyone knew there was no evidence of spying) the government went with the next best thing. If they had not found the pornography they would have left the house and the defendant would never and know they were there. The bottom line is that the government went fishing on national security grounds but caught a common criminal. It may be legal, but it is not in keeping with the spirit of the Constitution or the Bill of Rights.