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.
It is no wonder that, as newly disclosed documents show, FBI officials were relieved to learn that the paperwork for ending the individual investigation of Flynn had not been formalized. If the case had been closed without checking out this new lead, the FBI would have failed in its duty. And so Flynn was given what amounted to an integrity test, a series of questions to which the agents already knew the answers.
Barr’s motion to drop the charges uses a sleight-of-hand by pretending the only investigative matter “material” to Flynn’s FBI interview was whether Flynn himself took part in the Russian conspiracy. But as Mueller explains in his report, Flynn’s statements mattered to his larger, ongoing investigation of Russia-Trump campaign ties: Flynn had coordinated his calls through a senior Trump transition team official, K. T. McFarland.
The credibility of Mueller’s investigation depended on his ability to show the public that he had gotten to the bottom of the ties between the Trump campaign and Russian authorities—so any falsehood impeding that was a “material” concern. And then there was the matter of Flynn’s concealed relationship with the Turkish government. “Based on the totality of that conduct, the Office decided to charge Flynn with making false statements to the FBI,” Mueller’s report states.
The charges an indignant Barr and others are making against the FBI are that the agents operated more or less as federal investigators often do: they eased Flynn into believing they were his “allies.” Some version of this is heard in many a TV crime show; the detective says, “I’m your best friend here.” Another TV-cop trick: they subtly indicated that it would be in his best interest not to have a White House lawyer present, since that would only make this a higher-profile matter. And they gave no warning to Flynn that a false statement in an interview with FBI agents could be charged as a crime.
These tactics can often be abusive, but in this circumstance—interviewing an official who four days earlier had become the nation’s national-security advisor—it does seem a good idea for counterespionage agents to make sure their interviewee was on the level.
Nonetheless, there is reason to be concerned about federal prosecutors’ ability to accuse someone based on an FBI agent’s notes of what can be a casual conversation—a much hazier setting than, say, a grand-jury or congressional hearing.
All the more so because the Supreme Court has made it easy for federal prosecutors to stretch this law. In a 1998 case, the court upheld the conviction of union official James Brogan, found guilty based on one word spoken to Internal Revenue Service agents who asked if he had taken bribes: “No.”
Say what you will about the IRS; it is not so easily duped. Even so, Justice Antonin Scalia insisted that Brogan’s falsehood was material to the investigation.
“We cannot imagine how it could be true that falsely denying guilt in a government investigation does not pervert a governmental function,” he wrote for the majority. “Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function.”
Scalia, as he was wont to do, was relying on the plain meaning of the statute: the court had no basis to limit what Congress had legislated, “no matter how alluring the policy arguments for doing so.”
Justice Ruth Bader Ginsburg concurred, but warned: “Thus, the prospect remains that an overzealous prosecutor or investigator—aware that a person has committed some suspicious acts, but unable to make a criminal case—will create a crime by surprising the suspect, asking about those acts, and receiving a false denial.”
Justice Ginsburg, meet Martha Stewart. Unable to come up with evidence to charge Stewart with securities fraud, prosecutors resorted to a false-statement charge: a legal shortcut.
Ten years after the Brogan ruling, a Michigan State University law student surveyed a decade’s worth of federal false-statement prosecutions and found that in the 101 cases in which defendants pleaded guilty over remarks in face-to-face interactions with federal investigators, 93 had received no warning that they could be charged with a crime if they lied. For nearly three-quarters of the 93, the false-statement count was the only charge. That is, if the Flynn prosecution really is problematic, so are many others.
It’s doubtful that Barr will become similarly aggrieved over cases that have not enjoyed the attention of President Donald Trump. He has so bent the once-proud Justice Department to Trump’s will that he needs to be reminded of his remarks to a group of Cardozo Law School students in 1992.
“The Attorney General’s oath to uphold the Constitution raises the question whether his duty lies ultimately with the president who appointed him or more abstractly with the rule of law,” he said. “I said in my confirmation hearings, and have said several times since, that the Attorney General's ultimate allegiance must be to the rule of law.”