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These `just deserts' have sour taste

James Brogan was at home on the evening of Oct. 4, 1993, when agents of the FBI knocked on his door. They had come on a surprise visit to ask him about his relations with the JRD Management Corp.

The first questions were softballs. Was he a member of Local 32E, Service Employees International Union? Yes, he was. For how long had he been a member? Since 1951. Had he held union office? Yes, he had served as a union delegate in 1987 and 1988.Then came the hardball:

Q: As a union delegate, did you receive any cash or gifts from JRD?

A: No.

As the FBI agents well knew, that "no" was a lie. They told him they already had documentary evidence of payments to him. Then they informed him that lying to federal agents in a criminal investigation is a crime. Brogan made no further response, and the agents departed. Subsequently he was indicted, convicted and sentenced to nine months in prison for violating Section 1001, Title 18, U.S. Code.

He appealed all the way to the Supreme Court. On Jan. 26, the Supremes voted 7-2 (or more realistically 5-4) to affirm Brogan's conviction. Justice Antonin Scalia wrote for the majority. Justices David Souter and Ruth Bader Ginsburg concurred in the judgment, but their concurrence read more like a dissent. Justices John Paul Stevens and Stephen Breyer dissented outright.

Section 1001, adopted by Congress in 1934, makes it a felony for any person knowingly to make a false statement to a federal officer engaged in official business. That is what the law says, and it is hard to fault Scalia and his colleagues for upholding the letter of the law. That is the way criminal statutes should be read.

All the same, there is more to this case than a simplistic recitation of the law and the facts. Over the past 35 years, eight of the 13 judicial circuits have held that the unequivocal language of the law is equivocal after all. A doctrine has developed that an "exculpatory no" may be forgiven. Four other circuits have acknowledged the doctrine without rejecting it.

To exculpate is to excuse, to clear from blame. Under this doctrine, Brogan's "no" was not the stuff of criminal prosecution. It was a denial made without advice of counsel. Brogan was not in custody. He had not been warned of his right to remain silent.

The Department of Justice itself disdains a strict construction of Section 1001. The department's official policy is "not to charge a Section 1001 violation in situations in which a suspect, during an investigation, merely denies guilt in response to questioning by the government."

In Brogan's case the statute of limitations had run out on four of the five charges against him. The government figured that if it could not convict the defendant for bribery, it could convict him for lying. Off to the slammer!

No one, of course, has a right to lie, but a charge under Section 1001 comes uncomfortably close to entrapment or self-incrimination.

I am not as apprehensive as Justice Ginsburg seemed to be in her opinion, but I know that when government is given a power, it is likely that government will abuse it. I reckon James Brogan got what he deserved, but I don't like the way he got it.