Monday, December 17, 2018

UPDATED: Dersh Gets It Right

Today on Fox News Alan Dershowitz hit a hanging curve out of the ball park--and followed up with an article at The Hill: Did Michael Flynn lie? Or did the FBI act improperly? I have only one, partial, reservation with regard to his statements, which I'll make clear.

Quite simply Dershowitz states:

Is it the proper role of law enforcement to conduct criminal morality tests to determine whether citizens will tell the truth or lie when given the opportunity to do either by FBI agents?

As I've been saying, the answer--perfectly obvious to any sane person--is: Absolutely not! Dershowitz then takes it a step further, referring to Mueller's handling of potential witnesses:

Is it proper to target individuals for such tests for the purpose of pressuring them into becoming witnesses against the real target? These are important questions for all citizens who care about civil liberties and prosecutorial abuses.

That one is bound to involve trickier factual situations, but there's no doubt that Dershowitz is touching on exactly what he describes: "important questions for all citizens who care about civil liberties and prosecutorial abuses."

Here's my reservation and, as I said, it's only a partial reservation that pertains to the particular circumstances of the Flynn case. Dershowitz is absolutely clear that Flynn did nothing wrong in speaking to the Russian Ambassador. I only wish that Dershowitz had made it equally clear that the FBI had no business interviewing Flynn because there was nothing to talk to Flynn about that was within the field of the FBI's duties--neither criminal nor national security.

Dershowitz continues:

So back to the question of whether citizens who care about civil liberties should favor the tactics used by the FBI against Flynn. I believe the answer should be no. The function of law enforcement is to uncover past crimes, not to provide citizens the opportunity to commit new crimes by testing their veracity. ...
When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth. The FBI should not discourage the suspect from having his lawyer present during the questioning, if a false answer will subject him to criminal liability. Even noble ends do not justify ignoble means, and some of the means used by the special counsel have, indeed, been ignoble.

Again, please note: Flynn was not a "suspect" in this matter. He was suspected of no wrongdoing whatsoever as regards his conversation with the Russian Ambassador. It was a matter that fell outside the FBI's responsibilities in the factual circumstances in question. There never should have been an interview, and the judge should now dismiss the case against Flynn.

UPDATE: The "original" FD-302 that agents Strzok and Pientka wrote after their interview with Flynn has now been released. Bear in mind, of course, that this version was probably run past McCabe before it was finalized. My reading of this FD-302 leads to the same conclusion that I've already stated: nothing that was discussed in the interview was in fact material to any legitimate FBI concerns or duties, nor was Flynn in any way a "suspect." It simply is not the FBI's job to interview every national security or foreign policy official of the US government after they have a contact with a foreign official in order to test their memory or even their truthfulness. The FBI has access to electronic intercepts of all those conversations. If they have any counterintelligence concerns arising from such contacts they can open a counterintelligence investigation. It's clear that that did not happen in this case. The interview was simply an attempt to elicit statements from Flynn that could be interpreted as contradicting the official record, i.e., the recording of the conversations. In other words, it was a setup or, as Dershowitz says, a "criminal morality test." As such, the case should be dismissed because the agents weren't conducting legitimate FBI business.


  1. From the beginning, the question for me was who among the targeted individuals would play the Lewis Libby role in the Mueller investigation. That is, who would be the subject of the most egregious prosecutorial behavior. Now it is clear that Flynn gets this dubious honor, although he will likely get no jail time. I wonder, Mark, why it is illegal to lie to federal agents but not to state or local law enforcement. Of course, it is never a good practice to lie, but the lie should be suggestive of guilt and not the crime itself. On a related matter, why is it that state and local police videotape interviews of subjects in custody, but not the FBI. Must we always rely on agents' memories, as recorded in the 302 reports, as evidence of what was said? With people like McCabe, Mueller and Weissman abusing the system, that seems an unnecessarily risky practice.

  2. Steve, last week I was doing some searching on that subject--why don't the Feds record interviews. I recall seeing an article that claimed that the practice of handwritten notes (which are the real evidence) followed by the write-up (FD-302, which is not considered actual evidence) is favored by DoJ because it gives prosecutors an advantage in plea negotiations. Unfortunately, I can't lay my hands on that article right now. Here's one I just found: Why Do Federal Agents Still Take Interview Notes By Hand?

    Ah, wait, I just found the article I had in mind: What is an FBI 302? The Problematic Nature of FBI Agents’ Interview Memos. You'll want to scroll down to the last three sections in particular.

  3. Robert Mueller was appointed Special Counsel on May 17, 2017. Exactly two weeks later, on May 31, the FD-3012 about the interview of Michael Flynn was corrected to remove the mistaken header Draft Document / Deliberative Material.

    This sequence of events indicates to me that the Flynn matter was one of the very highest priorities of the Special Counsel investigation. Within the first two weeks immediately following the appointment, the Flynn documents were being reviewed carefully.

    In the Special Counsel's mind, the Flynn matter was one of the most urgent subjects to study in regard to Russian collusion with the Trump campaign.

  4. From an investigative POV that makes sense. If you wanted to come up with some sort of improper cooperation with the Russians by Trump, Flynn would be the obvious guy to start with--would've had contact with Trump that a guy like Page would never have had. And Manafort, of course, but campaign manager is different than NSD. Not to mention, the entire Deep State had/has it in for Flynn.