If retired Lt. Gen. Michael Flynn is truly a victim of overzealous law enforcement, he is another casualty of a “law and order” movement that managed to inflate prosecutorial power so much that even an innocent defendant with a good lawyer would rather plead guilty than risk trial.
Attorney General William Barr, who became Flynn’s unlikely defender by filing a motion to drop charges against him, is familiar with that movement. He was one of those bright young conservative ideologues who used their positions in the Reagan and Bush Sr. administrations’ Justice Departments to create a more punitive criminal-justice system.
The bludgeons handed to prosecutors to subdue narcotics kingpins and gangsters eventually were applied to government officials and Wall Street traders as well: mandatory sentences that made it all but impossible for underlings not to turn in informants in exchange for reduced charges; powerful forfeiture statutes to punish family as well as the defendant; denial of bail while awaiting trial; and broad conspiracy and racketeering accusations.
As attorney general during President George H.W. Bush’s administration, Barr went so far as to advocate that states overstuff their prisons beyond their design capacity, as the federal government had done. He basically told an organization of district attorneys in California that the Justice Department civil-rights division would look away from prison conditions that might violate the Eighth Amendment prohibition on cruel and unusual punishment.
Barr was an advocate of determinate sentencing, that is, of imposing sentencing guidelines that stripped judges of their power and placed much of it in the hands of prosecutors. When a sentence is predetermined, or close to it, the prosecutor’s decision about which charge to press becomes all-important to a defendant’s future.
The Sixth Amendment enshrines the right to “a speedy and public trial, by an impartial jury.” But given the power that prosecutors have been granted, almost no one goes to trial. “The right to a trial is a choice in name only,” the National Association of Criminal Defense Lawyers said in a 2018 report. “Empirical studies and exoneration data have revealed that the pressures defendants face in the plea bargaining process are so strong even innocent people can be convinced to plead guilty to crimes they did not commit.”
I don’t know that Flynn would qualify as one of those innocents. Barr’s motion to drop the charge to which Flynn twice swore guilt hinges on the question of whether Flynn’s once-admittedly false statements to two FBI agents were “material” to a federal investigation.
Do not dismiss this as a mere technicality. Federal prosecutors have become very reliant on their ability to salvage a frustrated investigation by filing a charge that the suspect illegally thwarted their probe—for example, Flynn’s false statement to the FBI concerning his conversations with the Russian ambassador to the United States. The requirement that the subterfuge be “material” to the investigation is a brake on the statute’s potential misuse.
At the same time, the offer to plead guilty to a “process” charge instead of a “substantive” offense can be attractive for a defendant. In Flynn’s case, he also admitted to—but was not separately charged—with making false statements in violation of the Foreign Agents Registration Act concerning work that his Flynn Intelligence Group did for Turkey.
The FARA law dates to 1938, when it was passed in an effort to curtail Nazi propagandizing. It’s a serious offense, especially for a defendant who’d just passed through the revolving door from private-intelligence work to national-security advisor. Paul Manafort was sentenced to the maximum five years of imprisonment that FARA provides for.
In filings with the government, Flynn gave the impression he was working for some Turkish businessmen, not the Erdoğan government, in an effort to extradite the Muslim preacher and writer Fethullah Gulën. He admitted that the filings falsely stated that the company didn’t know the extent of the Turkish government’s involvement in his project; that the effort was aimed at improving American business confidence in Turkey; and that an op-ed he published in The Hill on Election Day in 2016 was written on his own initiative—leaving out the supervising role of Turkish government officials.
Under his plea deal, Flynn was not charged separately for this. Neither was Flynn’s son, who was involved in his company. Barr ignores this in his motion to drop the one charge filed against Flynn, making a false statement to federal agents. Instead, Barr tethers his motion to the question of whether Flynn’s statements were “material” after the FBI had determined he was not personally involved in any conspiracy with Russian intelligence to influence the 2016 presidential election.
The FBI had already decided to close the investigation of Flynn when Washington Post columnist David Ignatius, quoting “a senior U.S. government official,” reported on January 12, 2017, that Flynn had spoken several times by phone with Russian Ambassador Sergey Kislyak on December 29 in a possible violation of federal law.
The Trump team explanation given to Ignatius was that Flynn was merely offering condolences to the ambassador. FBI counterespionage agents knew this was not so—they had transcripts of the intercepted calls, which concerned more weighty matters such as sanctions the Obama administration imposed on Russia for its interference in the U.S. election. Then news reports showed that Flynn had given a false account of the call to Vice President-elect Mike Pence.