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.

Mark Penn Pretty Much Gets It

Former Clinton adviser and pollster Mark Penn is an incisive thinker and writer on political and legal topics. His current article at The Hill--Flynn documents are the 'smoking gun' on Comey's FBI--cuts to the chase regarding the persecution of Michael Flynn. Again, however, I must take exception to Penn's use of the term "perjury trap," which we see so widely misapplied to the Flynn case.

Perjury has a very specific meaning:

Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding.

None of this applies to Flynn's interview with the FBI. That interview was in the most proper sense a "false statement trap," an attempt to get Flynn to make some statement that would appear to be at variance with the transcript of Flynn's telephone conversation with Russian ambassodor Kislyak. That variance could then be used to prosecute Flynn for making a false statement to the US government (18 USC 1001) in the person of two FBI agents--who had no official business with Flynn in the first place.

Had the Department of Justice (DOJ) released the newly disclosed documents related to Gen. Michael Flynn three years ago, instead of fired FBI director James Comey improperly leaking his “memos” on President Trump, there definitely would have been a special counsel — only it would have been investigating the FBI for gross abuse of power, not the Trump administration. 

"Had the DoJ released the newly disclosed documents ..." To be strictly accurate, the DoJ or FBI don't do a thing. Both are impersonal institutions. Actions, or failure to act, that are loosely attributed to such institutions are in fact the responsibilites of officials within those institutions, and their names should be used. In this case, the officials behind this egregious failure to do justice--or, more likely, the egregious obstruction of justice--are ultimately: Rod Rosenstein and Chris Wray. These two undoubtedly had enablers--Dana Boente in particular--but they bear the ultimate responsibility. But clearly these criminals were not acting alone--they were responding to the wishes of a political Establishment against those perceived by that Establishment as detrimental to their interests.

The new documents are in effect the “smoking gun” proving that a cabal at the FBI acted above the law and with extreme political bias, targeting people for prosecution rather than investigating crimes. 

Well, in fairness, the FBI couldn't and didn't act alone. The cabal, as we see more clearly every day, extended throughout the upper reaches of the Obama administration, especially in the USIC agencies, the State Department, and the National Security Council.

... Special counsel Robert Mueller’s report found no evidence of any Trump-Russia collusion. And yet, much of the media coverage of all this has been so riddled with bias that, in a recent poll, 53 percent still believe Trump colluded with the Russians to win the 2016 presidential election. 

... 

Michael Flynn was targeted for investigation not on the basis of any evidence but simply because he had contacts with the Russian government — something that I would hope would be true of any incoming national security adviser. ... 

... 

Let’s be candid — Flynn had been cleared of being a Russian agent on Jan. 4, 2017; there was never any evidence he should have been investigated in the first place. Yet now, because the investigation had not been officially closed, FBI officials cooked up a plan to try to create a crime that did not exist. They unmasked the private conversations of Flynn with the Russian ambassador that contained nothing illegal, so the only chance to “get” Flynn was by setting a perjury trap. This was then all picked up by special counsel Mueller’s team, who threatened Flynn with the possible lobbying transgressions of his son. 

Why were they desperate to get Flynn fired or prosecuted when there was no evidence whatsoever that he committed a crime? Former federal prosecutor Andrew McCarthy suggests they needed to get him out of the way of their investigation. I think it is more likely that they simply wanted to get their targets at all costs and sustain their investigation to bring down the administration. Clear prosecutorial abuses were committed against all of the defendants, none of whom were ever charged with colluding with the Russians. ... 

This was an investigation without foundation that systematically persecuted people at all costs. And the Mueller investigation was honorable only in the sense that the investigators had to admit there never was any evidence of Trump-Russia collusion.

"An investigation without foundation." Does that reality not strike at the very heart of the fundamental concept of Due Process that is the foundation of our constitutional order? An investigation undertaken strictly for political reasons, largely at the behest of a political party acting at the desire of its chosen candidate and an influential political cabal running the Executive Branch of government--what could be more clearly violative of Due Process and of our entire constitutional order?

McCarthy: Trump impeachment inquiry obstructed by Democrats

Andy McCarthy has an excellently concise explanation of the way in which the whole "whistleblower" charade dishonestly and illegally--if the Impeachment Theater were an actual legal proceeding--obstructs the inquiry. You can read the whole thing: Trump impeachment inquiry obstructed by Democrats' 'whistleblower' secrecy charade. All this has to do with the supposed need to hide the identity of Eric Ciaramella, the putative author of the complaint against Trump.

I'll slightly rearrange McCarthy's argument a bit to hopefully help bring out the essentials.

First of all, we all know that Eric Ciaramella is not, in fact, an individual who is covered by the "Whistleblower Act".

Secondly, even if Ciaramella did qualify as a whistleblower, the Act does not provide for hiding a whistleblower's identity. What the Act does is protect individuals from reprisals for revealing information that may be embarrassing or incriminating.

Thirdly, it is a fundamental principle of our constitutional order, enshrined in the 6th Amendment, part of the Bill of Rights, that due process of law requires that an accused person be allowed to confront his accusers and not be tried on the word of anonymous persons. Even if the "Whistleblower Act" purported to change that--it would be unconstitutional. In other words, "who we are as Americans" (the phrase so hypocritically used by liberals) forbids that we stage show trials without presenting witnesses to the actual events and facts that are at issue. Nor do we allow hearsay, generally--the facts must be vouched for by identified persons with firsthand knowledge who can be subjected to examination by the defense.

With these facts and principles firmly in mind, McCarthy provides a lucid account of what's been going on with Impeachment Theater--and how fundamentally and outrageously wrong it is:

Outstanding: A Prosecutor's Insights

Sean Davis spoke with Rep. John Ratcliffe today. The result is a must read article that's pretty much in the nature of a monologue by Ratcliffe: Adam Schiff’s Problem Isn’t That He’s Biased, It’s That He’s Running A Corrupt Process. I've called this post "A Prosecutor's Insights" because what Ratcliffe, a former prosecutor, presents are the insights that jump out at a professional prosecutor but might not occur to others.

The importance I see in Ratcliffe's presentation has to do with what could happen when, presumably, this hoax impeachment reaches the Senate. What Ratcliffe presents constitutes powerful grounds for dismissing any articles based on the fact that the House has deprived President Trump of Due Process--inflicting harm upon him without regard to fundamental fairness under our Constitution.

In a very real sense the issue of predication arises as part of this lack of due process--exactly how and on what basis was this "inquiry" instituted? No wrongdoing or offense has actually been alleged that would fall under the Constitutional standard of "High Crimes and Misdemeanors." Moreover, there are strong grounds to suspect that President Trump has been for his entire presidency the target of groundless investigation and even illegal leaks of classified information derived from organized spying. In other words, the entire operation was so lacking in predication--may actually involve fabricated "evidence"--as to constitute a concerted conspiracy precisely designed to deprive President Trump of due process and of his Constitutional rights as President and head of the Executive Branch.

With those considerations in mind, read what Ratcliffe had to say to The Federalist. He contends that Schiff's problem goes far beyond his well known bias against Trump and extends to real corruption that strikes at the validity of the inquiry. In other words, Ratcliffe is questioning not only the process that has been followed, but the character of its leader, who has compared himself to a prosecutor leading a grand jury.