Due Process And The Flynn Case

According to the Due Process clause of the United States Constitution appears in two places of that document. Both instances are in Amendments to the text itself. The first is in the "Bill of Rights"--the first Ten Amendments that were added within a year of ratification of the Constitution. It's a measure of the importance of the principles enshrined in those first ten amendments that there was enough concern about the failure of the Constitution to expressly affirm these principles that James Madison himself took the leading role in amending the Constitution. And so, in the Fifth Amendment we read:

No person shall ... be deprived of life, liberty, or property, without due process of law.

Likewise, in the wake of the Civil War, protection of civil liberties was regarded as so fundamental for the the union of states that is the United States that it was regarded as necessary to explicitly extend that same principle to the states, in the Fourteenth Amendment:

... nor shall any State deprive any person of life, liberty, or property, without due process of law.

Typically, in a law school course on what's termed "criminal procedure", the idea of due process of law is traced back to the beginning of actions that include some infringement on individual liberty or privacy--a search, seizure of property or person, arrest, etc.

With regard to the Flynn case we often hear the complaint that Flynn was given no warnings that he was under investigation, that his answers to the agents' questions might be used against him, etc. Sometimes the famous Miranda warnings are even cited. The idea behind these complaints is that in the governments handling of the Flynn investigation there was a lack of what legal scholars refer to as "fundamental fairness."

The fly in this ointment is that for "due process" and "fundamental fairness" to apply, there is a threshhold issue: these concepts normally only arise when there is some government process in motion that would deprive a person of "life, liberty, or property." The process may be judicial, administrative, or executive, but some process or proceeding is normally required before a court will consider fundamental fairness. Thus, obtaining a search or seizure warrant (seizure of property or person) is typically the beginning of a due process examination.

The reason Flynn was not provided with any warnings was because the Miranda rules only apply when the person being questioned is either already in custody--has been deprived of liberty to that extent--or the law enforcement questioners intend to take that person into custody upon completion of their questioning. Neither of those conditions applied to Flynn. Flynn was free to show the agents the door at any time during the interview, or to have refused to be interviewed at all. He wasn't in custody of any sort. Nor was Flynn about to be taken into custody. Even had Flynn confessed to being a Russian agent the agents would not have handcuffed Flynn and led him out of the White House. I guarantee you that. Therefore, the agents were under no legal obligation to inform Flynn that they intended--if possible, and subject to the opinion of DoJ prosecutors--to use any statements Flynn made against him. That understanding of due process and fundamental fairness is, to this day, settled law. You may think that that situation offended fundamental fairness, but the courts have the last word and they disagree with you. Or have up to this point.


Thus, in an excellent article today--Michael Flynn case places both FBI integrity and civil liberty on the line--as eminent of constitutional and, especially, of criminal law as Alan Dershowitz, despite his concern for Flynn's civil liberties, does not once even mention the concepts of due process or fundamental fairness. It's not that he's not familiar with them, but he knows that, under current case law, those concepts did not apply to Flynn's situation.

Read what Dershowitz has to say. He is concerned about what the FBI did to Flynn at the interview, but his objections are framed as public policy concerns--not concerns of constitutional principle:

This is how one of the most distinguished appellate judges in modern history — Charles Breitel — answered these questions in the context of grand jury testimony: “The Primary function of the Grand Jury is to uncover crimes and misconduct in public office for the purpose of prosecution … It is not properly a principle aim of the Grand Jury, however, to ‘create’ new crimes in the course of its proceedings. Thus, where a prosecutor exhibits no palpable interest in eliciting facts material to a substantive investigation of crime or official misconduct and substantially tailors his questioning to extract a false answer, a valid perjury prosecution should not lie.” 

Bear in mind, Flynn was not at the time of his interview involved in any type of legal "proceeding" and was not under oath. That's why he was never charged with perjury, despite the constant use of that term in discussing the Flynn case.

Another court, in the same district where Flynn allegedly committed his “crime,” made a similar point in the context of a legislative investigation, stating that “extracting testimony with a view to a perjury prosecution is [not] a valid legislative purpose.” These judges are right, though other judges have disagreed with them. What they said is just as relevant in the context of questioning by the FBI. 

Again, Flynn was not involved in a legislative proceeding or investigation.

Beyond the strict legalities lies the broader questions of policy: Is it the proper role of law enforcement to conduct criminal “morality tests” to determine whether citizens will lie when given the opportunity by FBI agents? 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. 

Here Dershowitz indicates--despite the fact that he mentions neither due process nor fundamental fairness--that there are bigger questions at stake in the Flynn case than the "strict legalities" might suggest.

There may be extraordinary situations, such as prevention of mass-casualty terrorism, that justifies the use of highly questionable tactics but, absent such extraordinary circumstances, FBI agents and prosecutors should not deliberately provide citizens the opportunity to commit federal crimes in order to prosecute them, make political points or turn them into government witnesses. 

When questioning suspects, 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. That is the civil liberties approach to proper law enforcement.

Clearly, Dershowitz is concerned with ideas of fundamental fairness in the relationship of citizens to agents of government power. But he also knows what the "strict legalities" are. My view is that the rights of free citizens should be--and are--grounded not merely on considerations of public policy but on the principles of our constitutional order, especially that of due process. I maintain that the criminal process begins with the decision to launch an investigation in the first place.

This is especially clear in the Flynn case, where the investigation was launched for the purpose of creating the appearance of a crime--a supposedly false statement which, however, misled no one. As Brett Tolman so aptly put it the other day (Hands Down Best Commentary On Flynn Case), the actions of the FBI were "predatory", and he points directly to the inception of the investigation, rather than at later developments in the criminal process:

This activity is outrageous. Everybody's saying it, but here's why it is. It's *predatory.* This is not ... a group of FBI agents who are informed there may be a line of investigation they need to look into. Instead, they are *creating* that investigation.

Does our constitutional order presuppose a predator/prey relationship between government and governed? Is that what Lincoln had in mind, speaking at another time of national crisis? How can "government of the people, by the people, for the people" be squared with a predatory law enforcement branch of that government, one that sets snares for citizens for no purpose other than to destroy them? Here's how I put the idea quite recently:

to suggest that the FBI--...--could even potentially end up in the business of starting up investigations just to assure itself on no evidence or suspicion whatsoever that no crime has been committed by any given person is an outrage.

Bear with me on this, because this is not a merely academic point. If it is, in fact, lawful--not a violation of constitutional due process--for the FBI initiate an investigation without any suspicion of wrongdoing--without predication--then in the Flynn case the Durham investigation could be left without any overall conspiracy case--even though we possess a veritable mountain of evidence at this point that there was such a conspiracy. Instead, Durham could be left pursuing ethical oversights and mistakes in withholding Brady material, or revising 302s based on a supposedly later, but better, recollection of events.

In fact, DoJ and FBI guidelines both recognize that it's wrong to initiate investigations without proper predication. I submit that that recognition implictly rests on the perception that such conduct violates due process--that it is a part of what Sidney Powell has described as "egregious government misconduct"--and should be explictly recognized as such.

IG Horowitz, in his report (The Horowitz Dossier And Predication), recognizes that the DoJ and FBI guidelines do require predication in order to begin an investigation in his report, even though he attempts to decouple that guideline requirement from constitutional principle:

Where the FBI has an authorized purpose and factual predication--that is, allegations, reports, facts or circumstances indicative of possible criminal activity or a national security threat, or the potential for acquiring information responsive to foreign intelligence requirements--it may initiate an investigation. The predication requirement is not a legal requirement but rather a prudential one imposed by Department and FBI policy.

The claim that the predication requirement is merely prudential is one that I believe was demolished in the linked post. I went on in the same post to point out:

Now, having said that, it's still true that violations of the Attorney General Guidelines--while not criminal in and of themselves--could still be a key part of an overall theory of a criminal conspiracy: to defraud the government of honest services, to violate civil rights of citizens, etc. That, of course, was one reason why Barr and Durham immediately and publicly disagreed with Horowitz's claim that there had been sufficient predication for Crossfire Hurricane. 

The way that works is that violations of the guidelines by investigators and prosecutors indicates intent--the intent to defraud the government of honest service and to violate the civil rights of citizens. It's a huge point for the Durham investigation, and one that Barr rarely loses an opportunity to repeat:

“The question is whether it was adequately predicated,” [Barr] told lawmakers in April [2019].

Sidney Powell, a brilliant appellate lawyer, knows that in her briefs she's speaking not only to the courts--to Judge Sullivan, to potential appellate judges, and ultimately to the SCOTUS. She knows that she's also speaking to Bill Barr, because in the end it may come down to DoJ declining to oppose Powell's motion to dismiss the case for "egregious government misconduct." However, you can be sure that Barr, a principled AG, will not do so based on mere mistakes made by investigators. He will be looking at matters of legal and, IMO, constitutional principle.

With that in mind, I'll repeat what I wrote in The Real Key In The New Flynn Revelations. As you (re)read, keep in mind the word used by Brett Tolman: "predatory"?


The first section of Powell's reply in support of her motion to compel the production of Brady (exculpatory) material is shocking, of course. It had long been known that the FBI and prosecutors had engaged in egregious misconduct--criminal misconduct--to secure the conviction of Flynn and compel him to cooperate against President Trump to force Trump from office. Expected as these revelation were, nevertheless, speaking from the perspective of nearly 30 years as a Special Agent of the FBI, I still find myself stunned by these revelations. These were not the rogue actions of a lone agent. This was a conspiracy that involved, essentially, the entire top management of the FBI and large elements of the DoJ.

Still, for me the key is the second section, in which Powell makes the point that--all other misconduct aside--the FBI had no legitimate reason to be investigating in the first place. Here is the beginning paragraph, with its associated footnote, which sums it up:

What was going on here is that, in the words Powell uses to describe the way in which the FBI prepared to interview Flynn:

high-ranking FBI officials orchestrated an ambush-interview of the new president’s National Security Advisor, not for the purpose of discovering any evidence of criminal activity—they already had tapes of all the relevant conversations about which they questioned Mr. Flynn—but for the purpose of trapping him into making statements they could allege as false.

I can't stress this strongly enough: What Powell describes is criminal misconduct and, coming from sworn law enforcement officials--investigators and prosecutors--of the US Department of Justice, it's extraordinarily serious criminal misconduct. The FBI is simply not authorized to initiate investigations of random Americans without reason, much less enter into a conspiracy to frame them for crimes they never committed by altering evidence. This is why the FBI dropped all pretense of claiming that Flynn was an agent of a foreign power--to avoid exposure of their criminal misconduct in targeting Flynn in the first place. And in this they were knowingly aided by DoJ officials.

What Powell accomplishes with this is to highlight the true goal of the conspiracy: The targeting of Flynn in this way was the first step in the attempted removal of President Trump from office. The conspirators--top officials at the FBI, aided and abetted by others at the CIA and DoJ as well as at other agencies--were willing to break the law to attain their object. This is a foretaste of where the Barr/Durham investigation is headed--it will be fleshing out the conspiracy of which the Flynn case is only one aspect.

The other aspect that calls for comment here is that, while I've spoken of "FBI misconduct," the misconduct--crimes--extend beyond the FBI. Yes, the FBI conducted the unlawful initial investigation and interview of Flynn, but the crimes against Flynn continued throughout the prosecution of Flynn--which was conducted by Team Mueller. That means that any thorough Barr/Durham investigation will need to target the entire Team Mueller operation and its key personnel. And I use the word "operation" advisedly. These are things we need to keep in mind going forward.

I have in the past written at some length regarding the issues discussed here--the guidelines covering various aspects of FBI investigations--their initiation and the techniques that may be employed--as well as the lack of a basis for investigating Flynn regarding his phone call with Ambassador Kislyak. ...

Sorry, but I never get tired of repeating this from Bill Barr:

“The question is whether it was adequately predicated,” he told lawmakers in April.

Just like in real estate the name of the game is "location, location, location," in criminal investigation the name of the game is "predication, predication, predication." And Sidney Powell, as a former prosecutor and current defense attorney, knows that every bit as well as Barr does.