722
Rehnquist, C. J., dissenting
surely also realize that in due course, on the assumption that the Judiciary was functioning as it should, the Supreme Court would itself decide that the exception was inconsistent with Bramblett, and disavow the exception. But of one thing he would have been in no doubt: that under Bramblett one who lied to an officer of Congress was punishable under § 1001, since that was the precise holding of Bramblett. But it is that very justifiable expectation of Congress that is set at naught by today's decision, under which the legislative process is no longer protected by § 1001.
The plurality offers a second reason in defense of its decision to overrule Bramblett. It points to a lack of significant reliance interests in Bramblett. It dispels any reliance prosecutors might have in enforcement of § 1001 by arguing that the Government has expressed a preference for proceeding under alternative statutes that punish comparable behavior. U. S. Dept. of Justice, United States Attorneys' Manual ¶ 9-69.267 (1992). The Government offered a convincing explanation for this preference: it instructs prosecutors to proceed under alternative statutes due to the uncertain mine field posed by the judicial function exception adopted in some, but not all, Circuits. Brief for Petitioner 20, and n. 9. I do not think the Government disclaims reliance by adopting a defensive litigating strategy in response to the choice of lower courts to disregard precedent favorable to the Government. And in this particular case, the perjury alternative in 18 U. S. C. § 1621 was altogether unavailable to punish petitioner's falsehoods because his statements were not verified, and the obstruction of justice alternative in 18 U. S. C. § 1503 was of dubious utility.
Statistics compiled by the Administrative Office of the United States Courts indicate that the Government has secured convictions under § 1001 in 2,247 cases over the last five fiscal years. Because the Administrative Office does not break down its statistics by type of agency to which the defendant made a false statement, further exploration of the
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