Some Lies Matter More Than Others: Why Congress Should Consider a 'False Statement Misdemeanor'

The Department of Justice's attempted abandonment of the Michael Flynn prosecution has sparked troubling and conflicting questions of political interference, prosecutorial indiscretion and judicial overreach. But a difficult question at the heart of the matter has gone begging: whether there are meaningful differences between a little lie and a big one, and between lies triggered by government interrogators and those that are volunteered.

Put aside philosophical and moral considerations that complicate answering those questions, because in federal court, the answer is simple: not really. Under prevailing interpretations of the false statement statute and its low bar for establishing materiality, a lie is a lie—and a felony. So, if we accept at face value the government's newly professed concerns about the materiality of the false statements at issue in the Flynn case, maybe it's time to consider broad reforms to the statute and distinguish lies that matter from lies that don't.