It's Not the Crime; It's the Cover-Up—Even If There Is No Crime

Focusing on a bizarre case involving whale "harassment" that was never actually alleged, The Wall Street Journal highlights the perils of Title 18, Section 1001, which makes lying to federal officials a felony punishable by up to five years in prison. The provision, commonly used by federal prosecutors when they can't make other charges stick, applies to anyone who, "in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully 1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; 2) makes any materially false, fictitious, or fraudulent statement or representation; or 3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry." The Journal cites a former Justice Department official who "says the law is so vague that harmless misstatements can be turned into federal felonies." It adds that "a person can be charged even if the lie didn't really fool anyone, or if the person didn't know the criminal consequences of fibbing."

The main case discussed by the Journal involves Nancy Black, a California marine biologist accused of violating this statute by 1) editing video of a whale watching excursion she oversaw and 2) failing to inform the National Oceanic and Atmospheric Administration that the video was edited. The NOAA supposedly was investigating whale harassment, but no one was ever charged with that offense.  Black says she provided the footage she thought the feds wanted (showing a captain whistling at a humpback whale), and no one ever asked her if it was edited. The Journal also notes a potential Supreme Court case in which an Idaho farmer was charged with violating the statute by allegedly lying to a state livestock inspector, on the theory that he thereby impeded enforcement of federal water regulations.