414
Ginsburg, J., concurring in judgment
agents. Cf. ALI, Model Penal Code § 241.3, Comment 1, p. 151 (1980) ("inclusion of oral misstatements" in § 1001 was "almost [an] accidental consequenc[e] of the history of that law").
III
Even if the encompassing language of § 1001 precludes judicial declaration of an "exculpatory no" defense, the core concern persists: "The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime." Sherman v. United States, 356 U. S. 369, 372 (1958).5 The Government has not been blind to this concern. Notwithstanding the prosecution in this case and the others cited supra, at 410-411, and n. 2, the Department of Justice has long noted its reluctance to approve § 1001 indictments for simple false denials made to investigators. Indeed, the Government once asserted before this Court that the arguments supporting the "exculpatory no" doctrine "are forceful even if not necessarily dispositive." Memorandum for United States in Nunley v. United States, O. T. 1977, No. 77-5069, p. 7; see also id., at 7-8 (explaining that "[t]he legislative history affords no express indication that Congress meant Section 1001 to prohibit simple false denials of guilt to government officials having no regulatory responsibilities other than the discovery and deterrence of crime").
In Nunley, we vacated a § 1001 conviction and remanded with instructions to dismiss the indictment, at the Solicitor General's suggestion. Nunley v. United States, 434 U. S. 962 (1977). The Government urged such a course because the prosecution had been instituted without prior approval from the Assistant Attorney General, and such permission was "normally refused" in cases like Nunley's, where the
5 Deterrence of Government-manufactured crimes is not at stake where a false denial of wrongdoing forms the basis, not for the imposition of criminal liability, but for an adverse employment action. For that reason, Lachance v. Erickson, ante, p. 262, is inapposite.
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