418
Stevens, J., dissenting
statements from § 1001 altogether. See ALI, Model Penal Code §§ 241.3, 241.4, 241.5 (1980); National Commission on Reform of Federal Criminal Laws, Final Report §§ 1352, 1354 (1971). A recodification proposal reported by the House Judiciary Committee in 1980 adopted that approach. It would have applied the general false statement provision only to statements made in writing or recorded with the speaker's knowledge, see H. R. Rep. No. 96-1396, pp. 181-183 (1980); unsworn oral statements would have been penalized under separate provisions, and only when they entailed misprision of a felony, false implication of another, or false statements about an emergency, see id., at 182. The 1971 law reform commission would have further limited § 1001; its proposal excluded from the false statement prohibition all "information given during the course of an investigation into possible commission of an offense unless the information is given in an official proceeding or the declarant is otherwise under a legal duty to give the information." National Commission on Reform of Federal Criminal Laws, Final Report § 1352(3).
In sum, an array of recommendations has been made to refine § 1001 to block the statute's use as a generator of crime while preserving the measure's important role in protecting the workings of Government. I do not divine from the Legislature's silence any ratification of the "exculpatory no" doctrine advanced in lower courts. The extensive airing this issue has received, however, may better inform the exercise of Congress' lawmaking authority.
Justice Stevens, with whom Justice Breyer joins, dissenting.
Although I agree with nearly all of what Justice Ginsburg has written in her concurrence—a concurrence that raises serious concerns that the Court totally ignores—I dissent for the following reasons.
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