Lying to Congress: The False Statements Accountability Act of 1996

Lying to Congress: The False Statements Accountability Act of 1996

98-456 A
May 12, 1998
CRS Report for Congress
Received through the CRS Web
Lying to Congress: The False Statements
Accountability Act of 1996
Paul S. Wallace, Jr.
Specialist in American Public Law
American Law Division
Summary
The False Statements Accountability Act of 1996, among other things, amends the
federal code to specify its applicability to the executive, legislative, and judicial
branches of government prohibiting anyone from knowingly and willfully making
misrepresentations to these three branches, and by making it clear that one can corruptly
obstruct Congressional proceedings personally as well as by influencing another person.
The Act overcomes judicial decisions that had eroded the protection of Congress against
false statements and other corrupt interference while acting within the performance of
its constitutional duties. This is accomplished by providing in effect that persons who
make false statements to Congress or the federal judiciary could be prosecuted to the
same extent as persons making false statements to the executive branch. The Act
provides that its false statement provisions: (1) shall not apply with respect to
statements, representations, writings, or documents submitted to a judge or magistrate
by a party or that party’s counsel in a judicial proceeding; and (2) shall apply to the
legislative branch only with respect to administrative matters or any congressional
investigation or review which is conducted consistent with applicable rules of the House
or Senate. This background report will not be updated.
Background
Prior to the Supreme Court’s decision in Hubbard v. United States1, section 10012
of title 18 of the United States Code applied to all three branches of the federal
government. In Hubbard, the Court held that section 1001 did not apply to the judicial
1 514 U.S. 695 (1995). See United States v. Bramblett, 348 U.S. 503 (1955), which was
overruled by Hubbard.
2 This section makes it a crime to knowingly and willfully falsify, conceal or cover up by
any trick, scheme, or device, a material fact, or make any false statement in any matter within the
jurisdiction of any department or agency of the United States.
Congressional Research Service ˜ The Library of Congress

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branch, nor, by implication, to the legislative branch of the federal government. The
Court said that a federal court was not a “department” or “agency” within the meaning of
section 1001, and the statute, therefore, did not apply to false statements made in judicial
proceedings.3 The Court argued that a common sense, ordinary reading of the text of
section 1001 did not define “agency” to include courts.4 While the Court did not directly
address the question of whether section 1001 still applied to Congress, in holding that
section 1001 did not apply to the courts, Hubbard was interpreted by a majority of the
courts as holding that section 1001 covered only the executive branch, leaving Congress
outside its scope.5
A few years prior to Hubbard, the Federal Court of Appeals for the District of
Columbia Circuit had held that the obstruction of justice statute, 18 U.S.C. §1505, could
not be used to punish lying to a congressional committee.6 One of the primary charges
in United States v. Poindexter was that Poindexter violated 18 U.S.C. § 1505. Section
1505 forbids anyone from “corruptly” obstructing or influencing “the due and proper
exercise of the power of inquiry under which any inquiry is being had” by a congressional
committee. The court in Poindexter held that the statute's language punishing anyone
who “corruptly endeavors” to influence a judicial or congressional proceeding was
unconstitutionally vague. The language failed, the court said, to give notice to Poindexter
that it was criminal to lie deliberately or present false and misleading evidence — rather
than to induce others to lie or mislead — in order to obstruct or influence such
proceedings. The amendment in section 3 of P.L. 104-292 regarding the prohibition on
obstructing Congress was designed to address this issue.
Congress swiftly reacted to the Hubbard decision. Bills were introduced in both
chambers during the second session of the 104th Congress to restore section 1001's scope
to its pre-Hubbard dimension; thereby making material false statements made to the
judicial and legislative branches prosecutable.7 In May, 1995, Representative Martini
introduced H.R. 1678, which applied section 1001 to all three branches of the federal
government, without exception. At a hearing on the bill, witnesses expressed concern that
the broad application of section 1001 to all three branches would chill advocacy in
judicial proceedings and also undermine the fact-finding process that is indispensable to
the legislative process. In response to these concerns, Representative Martini introduced
H.R. 3166 on March 27, 1996, which included a judicial function exception, exempting
from the scope of section 1001 those representations made by a party or party’s counsel
to a judge during a judicial proceeding. Representative McCollum, Chairman of the
Subcommittee on Crime, offered an amendment, which passed on voice vote to provide
3 Hubbard, 514 U.S. at 699-700.
4 “In the case of § 1001, there is nothing in the text of the statute, or in any related
legislation, that even suggests—let alone shows—that the normal definition of `department’ was
not intended.” Id.at 701.
5 See Ditty v. Checkrite, Ltd., Inc., 973 F. Supp. 1320, 1329 (D. Utah 1997); In Re Grogan,
972 F. Supp. 992, 1005 n. 18 (E.D. Va. 1997).
6 United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991).
7 The House version was introduced as H.R. 3166, the “Government Accountability Act of
1996.” See H.R. 3166, 104th Cong. (1996). The Senate version was introduced as S. 1734, the
“False Statement Penalty Restoration Act.” See S. 1734, 104th Cong. (1996).

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a legislative function exception to section 1001. On July 17, 1996, H. R. 3166 passed the
House which was subsequently amended before Senate passage. On September 26, 1996,
the House revised the Senate amendment, and on September 27, 1996, the Senate agreed
to the bill as modified. It was signed by the President and became Public Law No. 104-
292 on October 11, 1996.
The Government Accountability Act of 1996, P.L. 104-292, applies section 1001
to all three branches of the federal government, with two exceptions: (1) it does not apply
with respect to statements, representations, writings, or documents submitted to a judge
or magistrate by a party or that party’s counsel in a judicial proceeding; and (2) it shall
apply to the legislative branch only with respect to administrative matters or any
congressional investigation or review conducted and consistent with House or Senate
rules. The purpose of this exception is to avoid creating an atmosphere which might so
discourage the submission of information to Congress that it undermined the fact-finding
process which is indispensable to the legislative process.
Section-by-section analysis of P. L. 104-292
The Act contains several sections. Section 1 provides that the short title is the “False
Statements Accountability Act of 1996.”
Section 2 amends subsection 1001(a) of title 18 of the United States Code to specify
its applicability to the executive, legislative, and judicial branches of the government
prohibiting anyone from knowingly and willfully making misrepresentations to the
government. This section covers offenses that fall into three general categories: (1)
falsification, concealment or other cover-up of a material fact by any trick, scheme or
device; (2) the making of any false, fictitious, or fraudulent statements or representations;
and (3) the making or use of any writing or document with knowledge that such
document contains false statements. It also provides for the restoration of false statement
penalties by applying the criminal penalties of section 1001 to persons who knowingly
and willfully make misrepresentations to all three branches of the federal government.8
Section 2, subsection 1001(b) provides that the provisions with respect to subsection
(a) do not apply to a party to a judicial proceeding, or that party’s counsel for statements,
representations, writings or documents submitted by such party or counsel to a judge or
magistrate in that proceeding.
Subsection 1001(c) provides that with respect to those matters within the jurisdiction
of the legislative branch, subsection (a) applies only to: (1) administrative matters,
including a claim for payment, a matter related to the procurement of property or services,
personnel or employment practices, or support services, or a document required by law,
rule, or regulation to be submitted to the Congress or any office or officer within the
legislative branch; or (2) any investigation or review, conducted pursuant to the authority
of any committee, subcommittee, commission or office of the Congress, consistent with
applicable rules of the House or Senate. Relative to exception (b), the House Report
states:
8 Section 1001 violations may be penalized by a fine, imprisonment for not more than five
years, or both (18 U.S.C. §1001).

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“[This] ... exception is intended to codify the judicial function exception which has
long been recognized by many Federal courts as necessary to safeguard from the
threat of prosecution statements made in the course of adversarial litigation. Allowing
the criminal penalties of section 1001 to apply to statements made in the course of
adversarial litigation would chill vigorous advocacy, thereby undermining the
adversarial process. The exception is consistent with the Court’s reasoning in
Bramblett and Morgan, and subsequent case law, which consistently distinguished
the adjudicative from the administrative functions of the court, exempting from
section 1001 only those communications made to the court when it is acting in its
adjudicative or judicial capacity , and leaving subject to section 1001 those
representations made to the court when it is functioning in its administrative capacity.
Thus, false statements uttered during the course of court proceedings or contained in
court pleadings would not be covered by section 1001....”9
Relative to exception (c), Representative McCollum stated:
"The legislative function exception limits section 1001's application in a
legislative context to administrative matters and to any investigation or review that is
conducted pursuant to the authority of a committee, subcommittee, commission or
Office of Congress, consistent with applicable rules. I think it is important to note
that the term "review," as used here, refers to an action that is ordinarily initiated by
the chairman of a committee, subcommittee, office, or commission, consistent with
the performance of their oversight or enforcement activities. "Investigation or review"
is not intended to include routine fact gathering or miscellaneous inquiries by
committee or personal staff."10
As amended, section 1001 will have application to communications to Congress,
which includes all forms of testimony and most correspondence.11 Information which is
"neither furnished as part of an administrative filing, nor furnished pursuant to a duly
authorized congressional investigation is not subject to the criminal penalties of section
1001".12
Section 3 amends section 1515 of title 18, United States Code and it responds to the
Federal Court of Appeals for the District of Columbia decision in United States v.
Poindexter13 by clarifying that a person acting alone may obstruct a congressional
committee inquiry. The court dismissed two counts charging Poindexter with obstruction,
on the ground that the word “corruptly” in 18 U.S.C. § 1505 did not give Poindexter fair
notice that it would be illegal to lie to the committees for the purpose of obstructing their
investigations. The statute could be said to proscribe no more than inducing another to lie
to a congressional committee. The amendment inserted in section 3(b) states: “As used
9 H.R. Rep. No. 680, 104th Cong., 2d Sess. 4 (1996).
10 142 Cong. Rec. H 11138 (daily ed., Sept. 25, 1996).
11 Supra note 9, at 5.
12 Supra, at 4.
13 Former National Security Advisor, John Poindexter was charged with five felonies,
including one count of conspiring with former White House aide Oliver L. North and others to
conceal the National Security Council's Iran-Contra activities from Congress, and four
substantive counts of obstruction and false statements. The convictions were overturned on
appeal, United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991).

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in section 1505, the term `corruptly’ means acting with an improper purpose, personally
or by influencing another, including making a false or misleading statement, or
withholding, concealing, altering, or destroying a document or other information.”
Section 4 (Enforcing Senate Subpoena) amends section 1365(a) of title 28, United
States Code by targeting explicitly the executive branch by clarifying that resistance to a
Senate subpoena by a federal employee claiming a governmental privilege must be
authorized by the executive branch and may not be based on a claim of personal
privilege.14
Section 5 (Compelling Truthful Testimony From Immunized Witness) amends
section 6005 of title 18, United States Code so as to allow Congress "to compel an
immunized witness to testify at depositions as well as hearings."15
14 Supra note 10, at H11138.
15 Supra.

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