Predication, Lying, And The Flynn Case, Part 2

In Part 1 I reviewed all the reasons why the interview of Michael Flynn was not official FBI business, and so should never have been conducted. In fact, I maintained, conducting such an interview was itself a criminal act--an abuse of official powers under the color of law--because it lack any underlying predication.

I also pointed out the pernicious double standard that operates in our justice system. Federal prosecutors and investigators are almost never held to account for their lies and misrepresentations in official proceedings, but citizens like Flynn and Scooter Libby are punished for "lying" when they may never have lied at all or, at worst, provided an account of facts from their own point of view.

I submit that criminalizing misstatements that in no way hinder the government--because the truth is known--is immoral and abusive. I use the word immoral because laws that disregard fundamentals of human nature entirely are immoral. And what could be more human than for a person to color--consciously or, very possibly, unconsciously--their recollections of their conduct to put the best possible light on it?

To illustrate what I mean, in an earlier post--Russia Hysteria, False Statements, And The Michael Flynn Affair--I quoted Professor Jonathan Turley on the subject:


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APPENDIX RE THE FALSE STATEMENT STATUTE, 18 USC 1001

During most of my working years "1001" was NEVER used the way it is now. What's going on now is, IMO, disgraceful. Jonathan Turley explains.

Excerpt from If Andrew McCabe lied, could he be charged like Michael Flynn? By Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University.


... An alleged false or misleading statement by McCabe could rekindle questions about how the Justice Department addresses alleged false statements within its own ranks.

... However, if history is any guide, McCabe is unlikely to find himself facing a charge.

It is a perceived luxury enjoyed by federal prosecutors that routinely charge others with even borderline false statements but rarely face such charges themselves. While most prosecutors adhere to the highest ethical standards, a minority of Justice Department lawyers have been accused of false or misleading statements in federal cases. However, they are virtually never charged with false statements by their colleagues. There is no such reluctance in using this easily charged crime against targets outside of the department.

Consider the case of former National Security Adviser Michael Flynn. He now faces a prison stint after pleading guilty to a single false statement about a meeting with Russian diplomats during the Trump presidential transition period. While Flynn did not deny the meeting, which was entirely legal, he denied discussing sanctions with the Russians. Mueller charged him with lying or misleading federal investigators under 18 U.S.C. 1001. He did so even though investigators working under former FBI Director James Comey reportedly had concluded that Flynn did not intend to lie and should not be charged criminally for the omission.

... It is common for people to omit or color facts in interviews on events that may have occurred weeks or months or even years earlier. Most people assume that they have a right to deny wrongdoing. Indeed, there was once an “exculpatory no” doctrine that maintained that a person could deny a crime with an investigator and not be subject to a charge under laws like Section 1001. This was viewed as an extension of the Fifth Amendment protection againIt is a perceived luxury enjoyed by federal prosecutors that routinely charge others with even borderline false statements but rarely face such charges themselves.st self-incrimination.

The Justice Department litigated for years to deny the “exculpatory no” to average citizens. It finally succeeded in 1998 in Brogan v. United States when the late Justice Antonin Scalia wrote for the majority that “we find nothing to support the ‘exculpatory no’ doctrine except the many Court of Appeals decisions that have embraced it.”

In the case of Flynn, he was not even denying a criminal allegation. There was nothing particularly uncommon, let alone unlawful, in an incoming national security adviser discussing the issue of sanctions that were the main areas of tension with the Russians. Flynn did not deny the meeting but did deny the subject of sanctions, as opposed to discussing better relations in the new administration. Nevertheless, he was charged and, reportedly after depleting his savings and putting his house up for sale, he pleaded guilty.

...

The issue ultimately should not be whether McCabe or Comey used an “exculpatory no” and should have been charged with a false statement. The issue is whether a different set of rules applies to the Justice Department than the one that it applies to the rest of us. In the end, Flynn cut a deal and will have to live with it. Moreover, prosecutors may have felt that they had provable crimes against Flynn or his son, Michael Flynn Jr., making the false statement charge merely a convenient charge for cooperation. (Flynn was dealing with some dubious characters linked to Turkish President Recep Tayyip Erdogan.)

However, there should be a concern whether Section 1001 is a crime that is easily satisfied and arbitrarily enforced. That is a dangerous combination. The “exculpatory no” doctrine may have been ruled as unavailable to citizens but it appears very much alive inside of the Justice Department.

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If you care for another version of my views on 1001, you'll find it here: The Meaning Of The Roger Stone Indictment.

With regard to this whole business of lying, making misstatements, coloring one's recollection of the past, etc., commenter TexasDude reminded me of an excellent and thought provoking article by Ken White: Everybody Lies: FBI Edition. The article was written with Michael Flynn explicitly in mind. He begins with some simple advice--short and sweet:

You, dear readers, know my advice about talking to the FBI: don't.

Of course White knows the matter is more complicated than that, so he adds:

Platitudes aside, going into a law enforcement interview armed only with the attitude "I'll just tell the truth" is poor strategy.

Here's why.

Now, I do want to be clear that, in my experience, a good interviewer does not lie. But that doesn't mean that some investigators and prosecutors don't lie. Some do, to get results, or even because they enjoy the weird sense of power it gives them. What, you thought there was some Boy Scout test for anyone becoming an investigator or prosecutor? Or a politician, or a general? 

This all comes out in Big Cases with ambitious investigators and prosecutors who are looking to rise in the ranks, make a name, etc. And their superiors--and, let it be said, judges--generally speaking do absolutely nothing to rein that in. In fact, this unprincipled conduct has become fairly standard in the Mueller/Comey/Fitzpatrick/Weissmann school of prosecuting.

So White goes on to explain Why:

No offense, but you may be a sociopath. If the FBI wants to interview you, it's possible you're some kind of Big Deal — a politician or a general or a mover and shaker of some description. If you're kind of a big deal, there's a significant possibility you're a sociopath. You really don't know how to tell the truth, except by coincidence. You understand what people mean when they say "tell the truth" but to you it's like someone saying you should smile during the interview. Really? Well, I'll try, I guess, if I remember. You've gotten to be a big deal by doing whatever is necessary and rather routinely lying. It may be difficult for you to focus and remember when you are lying because lying feels the same as telling the truth. If someone shoved me onto a stage and said to me, "look, just hit the high C cleanly during the solo," I could take a real sincere shot at it, but I wouldn't really know what I was doing. If you think you can go into an FBI interview and "just tell the truth," when it's not something you're used to doing, you're deluding yourself. You're not going to learn how in the next five minutes.

You're almost certainly human. There's a commandment about not bearing false witness. But rules don't become commandments because they're really easy to follow. They become commandments because we — we bunch of broken hooting apes — are prone to break them. Everybody lies. Humans lie more under pressure. ... I'm not making a normative judgment here; surely it would be nice if we didn't lie. I'm making a descriptive statement: humans lie. Saying "I'll just go in and tell the truth" is like saying "I'll just start being a good person." Well, good luck. Look, you admit to being fallible in other respects, right? You admit sometimes you're unkind when you're tired, or sometimes you drink or eat more than you know you should, or sometimes you procrastinate, or sometimes you have lust in your heart? What makes you think you're infallible about telling the truth?

Dumbass, you don't even know if you're lying or not. ...

You have no idea what you're telling the truth about. ...

You can't even talk properly. ...

You don't know if you're in trouble. You say "I'll just go and tell the truth." Well, if you mean "I'll just go confess to anything I've done wrong and take the consequences," that's one thing. But if you mean "I'll just tell the truth because I've done nothing wrong and I have nothing to hide," you're full of shit. You don't know if you've done something wrong yet. Do you know every federal criminal law? Have you applied every federal criminal law to every communication and meeting and enterprise you've engaged in for the last five years? "But . . . but . . . the FBI said they just wanted to talk about that meeting and there was nothing wrong with that meeting." Dumbass, you've got incomplete information. Not only do you not know if there was anything wrong about that meeting, you don't know if that's what they'll ask about. If you're saying "I'll talk to them because I have nothing to hide," you are not making an informed choice.

Everybody lies. Especially the FBI. ...

It's all entertaining and mostly all right. But the real point is, for a country that talks about Liberty and Justice for all, isn't it a bad idea to criminalize something as human as having a bad memory? Or maybe coloring your account of something because maybe you're a bit embarrassed? I think it is. And especially when the people doing the investigating, prosecuting, and judging routinely give themselves a break.