Sen. Ted Stevens (R-Alaska) is being prosecuted under a provision of law that he helped rewrite in 1996 to reinstate the Justice Department’s ability to bring charges against people who make false statements to Congress.

In May 1995, the Supreme Court ruled in Hubbard v. United States that the law against making fraudulent statements to the government applied only to people making statements to executive branch agencies.

The original language of the relevant section of the U.S. Code (18 U.S.C. 1001) read, “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

The Supreme Court opinion — written by another Stevens, Justice John Paul Stevens — concluded that only executive branch agencies met that definition, not courts and not Congress. The Hubbard decision directly overruled a 40-year-old case in which the Supreme Court held that a Member of Congress could be prosecuted for reporting falsely to a legislative office.

The following year, Ted Stevens was one of 12 Senators — led by his Alaskan colleague Sen. Frank Murkowski (R) — who co-sponsored legislation to reverse the Hubbard decision and restore criminal penalties for anyone who lied on Congressional disclosure forms. At the time, Stevens was chairman of the Senate Rules Committee and was a member of the Governmental Affairs Committee. The requirement to file financial disclosures is governed by federal law, but it is implemented under provisions of the Senate Rules.

The False Statements Accountability Act of 1996 rewrote 18 U.S.C. 1001 to read, “Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.”

Sen. Arlen Specter (R-Pa.) explained in a July 1996 floor statement that the legal change was critical because the Hubbard decision “put at grave risk the ability of Congress to collect correct information, as false statements to Congress could no longer be punished.”

The bill was important to “make it clear that intentional false statements to Congress are just as pernicious as those made to an agent of the executive branch,” Specter said. The bill passed the Senate by unanimous consent.

A Justice Department analysis of the language said that the 1996 amendment “restores the Department’s ability to prosecute false statements made to the judicial and legislative branches,” which is precisely the nature of the charges Stevens is facing.

Legal experts note that each count against Stevens carries a maximum of five years in prison, but even if he is convicted on all counts, he would likely face far less jail time, probably measurable in months rather than years.