Fourth, this case appears to illustrate what critics most dislike about the felony offense of lying to investigators (the notorious section 1001 of the federal penal code).

For comparison purposes, let’s look at the very similar crime of perjury (section 1621). In the perjury situation, the witness is placed under oath so the wages of false testimony are made clear. There is almost always a contemporaneous, verbatim transcript, so there is no doubt about who said what. If there is any ambiguity regarding whether an answer was false, it inures to the benefit of the witness — i.e., even when witnesses are trying to mislead, there is no perjury if their statements are literally true. And if what is asked or answered is unclear or capable of different interpretations, the burden is on the interrogator, not the witness, to clarify the record. A person may not be convicted for perjury unless there clearly was an intentionally false statement.

In sharp contrast, cases involving false statements to investigators are not nearly as tight. Usually, the witness is not under oath and there is no contemporaneous transcript or electronic recording. The case hinges on the memories of the investigators about what was said. Agents use their handwritten notes (which are later whipped into a narrative “Form 302 report”), to aid their recollection, but the witness is not given an opportunity to review the notes or the 302 for accuracy and completeness.

It is no surprise, then, that this process lends itself to significant disagreements about exactly what was said.