Last week we started our series about the Mueller report and the tactics employed by the Special Counsel in what could be considered the most significant internal investigations of the 21st century. In our first post, we discussed the organization of the gigantic report and how it contributed to making the report easier to understand for its readers.
This week, we’ll address the Special Counsel’s handling of false statements made to investigators – to date, the most significant results to come from the investigation. Frequently, workplace investigators are faced with difficult determinations as to whether witnesses or subjects of investigations are lying to investigators. Federal investigators face an even greater obstacle when dealing with false statements due to the statute criminalizing false statements to government investigators. The statute requires investigators to establish the witness “knowingly and willfully made a false statement or representation in a matter being investigated.” In addition, the investigators face a heightened investigative standard of proving the violation “beyond a reasonable doubt,” as opposed to the standard workplace investigation that normally only requires a “preponderance of the evidence.”
Despite the heightened standard, the Special Counsel was able to secure several guilty pleas from witnesses in the investigation for false statements to government investigators, including foreign policy advisor George Papadopoulos, former National Security Advisor Michael Flynn, and former special counsel to the Trump organization Michael Cohen.
In many of the instances of dishonesty, the lies of those interviewed appeared relatively easy to prove – witnesses testified falsely about the timing of meetings or appointments to positions. However, some of the false statements found by the Special Counsel involve the level of importance and extent of communications between the witnesses and Russian contacts. For such an allegation to hold up, the investigator must have unimpeachable evidence of the existence and contents of those communications, and ask questions in a way that the witness cannot be ambiguous about his or her actions. The Special Counsel states that they relied on “emails, text messages and other information.”
In a particularly interesting finding, the Special Counsel found that Michael Cohen lied to investigators when he “stated he did not recall any Russian government contact about” the Trump Tower Moscow project.
Investigators should take note of this – frequently during investigations, instead of lying to an investigator about misconduct, subjects will state they do not recall the details of certain situations. The Special Counsel was able to prove, through Cohen’s own statements, that he actually did recall contact with Russian government officials. Even if a subject of an investigation says he or she cannot recall specific facts, inferences can be drawn through other statements made during an investigation to prove claims of bad memory false. Every statement made during an investigation can be crucial to proving or disproving allegations, so investigators need to pay attention to everything said by witnesses.
Finally, the importance of narrowly-tailored questions came out in the Special Counsel’s analysis of statements made by then-Attorney General Sessions. Both the media and the Special Counsel discovered communications between Sessions and the Russians after Sessions testified to Congress that he had not engaged in such. However, the Special Counsel found the question asked of Sessions about his contact with the Russians was too broad that it could have been plausible for Sessions to have not considered general contacts with the Russian government to be part of the query into his contacts. As such, the Special Counsel was not able to recommend charges for Sessions.
It is crucially important for investigators when asking questions about issues about which they believe the subject may lie, that the question be framed in multiple ways to ensure the subject cannot claim was either ambiguous or so narrow that they can provide an inaccurate answer without lying. While it may be true that the witness in this investigation did not recall whether questionable contacts took place, a thorough line of questioning on the subject may have given him no room to create ambiguity in his answer.
The Mueller report covers a broad range of investigatory techniques and findings. If you have not read it yet, you can find it here. We intend to continue our analysis of the report and bring more to you soon. If you or your company need help in developing your investigation techniques, don’t hesitate to contact the Wiley Law Office, for advice that works.