Bill Barr, Michael Flynn Meet James Brogan

          “A conservative is a liberal who got mugged.” I heard that bon mot many times decades ago when crime was higher in the country.

          Today we have conservatives who are newly-minted civil libertarians because law enforcement techniques, tactics, and procedures employed against many others have been used on those around Trump.

Many of us have been critics of these law enforcement practices for decades and generations. We weren’t joined by conservatives, but rather were attacked as menaces to law and order. When, however, federal agents used these techniques and tactics on conservatives, a cadre of conservatives now denounce these elements of law enforcement. You might say that it is like a liberal who gets mugged; when Trump people are investigated, conservatives become civil libertarians. However, I suggest that you take that conversion with a grain of salt at least until this concern is shown for people other than Trumpistas.

          The most recent conservative outcry concerns Michael Flynn, and their collective cry has been heard. The Department of Justice, not a court or jury, has dismissed the charges against Flynn.

Making knowingly false statements to investigating federal officers is a crime under 18 U.S.C. §1001. Flynn pled guilty to lying to FBI agents about his conversations with the Russian ambassador. That Flynn, represented by expensive, experienced attorneys, admitted his guilt is an inconvenient truth for the newly outraged. (As is the fact that Trump fired Flynn for lying to vice-president Pence.) All they can do is to latch on to Flynn’s present attorneys’ allegation that he pled guilty only because the government threatened prosecution of Flynn’s son if Flynn did not plead guilty.

          We do not know whether this threat was made; we only have Flynn’s attorneys’ word for it. But if it happened, it was not a tactic created for Flynn. I, along with other defense attorneys, have heard that threat from prosecutors more than once. Clients I represented were told many times that unless they pleaded guilt a spouse, a parent, a child, a brother, or sister would face criminal charges. I and my defense brethren often argued that this was coercive and reprehensible, but courts have long accepted the practice. And never once did I hear conservatives speak against this coercive tactic when used against ordinary folk.

          Mostly, however, the conservative commentators maintain that Flynn was treated unjustly because he was placed in a “perjury trap.” Flynn was asked about conversations with the Russian ambassador concerning sanctions that had been placed on Russia. He denied the conversation. He was questioned, as a writer for “American Spectator” said, “without the FBI warning him that it was an investigatory interview.” (Otherwise, it is ok to lie to the FBI?) The FBI apparently had a tape of the conversation in question, and they already knew the content of the conversation. A “National Review” editorial points out that they did not play the tape for Flynn but commenced “instead grilling him.” (Flynn, supposedly experienced in intelligence work, should have known that the ambassador was routinely tapped. Why, then, did he lie?) The “National Review” editors conclude that “it’s not clear what the FBI was doing besides hoping he’d lie.” A writer on foxnews.com said something similar: “In short, there was no law enforcement purpose for the Flynn interview. The purpose of the interview was to have Flynn lie and get him fired. . . . A perjury trap occurs when the facts are known to prosecutors and investigators and the only purpose of the interview is to catch the subject in a lie. This was a false statement trap since Flynn was not under oath, but the principle is the same.”

          The Justice Department under Attorney General William Barr heard the cries and dismissed Flynn’s case because his lie was not material, a requirement of the crime. (18 U.S.C. §1001(a)(3) requires that a statement (1) is false, (2) is material, (3) is knowingly and willfully made, and (4) concerns a matter within the jurisdiction of a federal department.) Courts have interpreted that materiality requirement broadly. The false statement does not have to actually influence the government’s actions; the lie, as one court put it, only has to have “a natural tendency to affect,” the federal agent’s decisions. If Flynn admitted to talking with the ambassador about the sanctions, there would have been follow-up questions: Were you acting on your own or were you following the advice or directions of others? Who knew about your conversation? When did you first discuss sanctions with a Russian official? Before the election? Did you make any promises to the Russians? Did they make any to you? Depending on the answers, agents would have reasonably taken further actions such as interviewing others. This did not happen because the falsehood ended those possibilities. In short, the lie had a “natural tendency to affect” the investigators.

          Why, then, was Flynn’s lie considered not material?  Attorney General William Barr was not entirely clear on this point when he gave an interview to CBS, but he seemed to say that the lie was immaterial because the interview was a perjury trap. He said the questioning was not a “bona fide counterintelligence investigation,” He maintained that the ongoing counterintelligence investigation was being shut down but continued: “And that when they heard about the phone call, which is—the FBI had the transcripts too—there’s no question as to what was discussed. The FBI knew exactly what was discussed. And General Flynn, being the former director of the [Defense Intelligence Agency] said to them, ‘You listen, you listen to everything. You know, you know what was said.’”

          If Flynn had told the FBI agents what Barr said he had, of course he should not have been prosecuted. He would not have been lying, but in fact he denied having the conversations and pleaded guilty, twice, to telling that willful, material, lie.

          But Barr went on to say: “There was no mystery about the call. . . . They kept [the investigation] open for the express purpose of trying to catch, lay a perjury trap for General Flynn. They didn’t warn him, the way we usually would be required by the Department. . . . [It] was not a legitimate counterintelligence investigation going on.”

          I, too, am concerned if the FBI’s goal was to get Flynn to lie. If so, the federal agents were seeking to create a crime, and law enforcement should not do that. But Barr and the Flynn commentators never mention that this is hardly the first time such a trap has been set. Bill Barr and Michael Flynn meet James Brogan.

          James Brogan was a union official in 1987 and 1988 when he accepted cash from a company whose employees were represented by Brogan’s union. The last transaction was in December 1988. Federal agents visited Brogan’s home on October 4, 1993, and asked for his cooperation in an investigation of the company. The agents told him that if he wished to cooperate, he should have his attorney contact the U.S. Attorney.

          The agents then asked if they could ask Brogan some questions, and he agreed. They asked if he had received any cash or gifts from the company. He said, “No.” Only after this response did the agents tell him that a search of the company had uncovered records showing the payments. He was then told that lying to federal agents in the course of an investigation was a crime, but Brogan, without his counsel being present, stuck to his answer.

          Brogan was convicted under 18 U.S.C. §1001, and the case made its way to the Supreme Court.

While lower courts had held that a simple false denial of guilt did not violate the statute—what is known as the “exculpatory no” doctrine–the Supreme Court, in a 1998 opinion by Justice Antonin Scalia joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Thomas, affirmed the conviction.

The Court first held that an “exculpatory no” was a false statement that fell within the literal terms of the statute. Brogan argued, however, that the “exculpatory no” doctrine was inspired by the Fifth Amendment, which says that people cannot be required to incriminate themselves. Brogan contended that the literal reading of §1001 violates the spirit of the Fifth Amendment since it presents the “cornered suspect” with the “‘cruel trilemma’ of admitting guilt, remaining silent, or falsely denying guilt.” Scalia scoffed: “This ‘trilemma’ is wholly of the guilty suspect’s own making, of course. An innocent person will not find himself in a similar quandary. . . And even the honest (sic)and contrite guilty person will not regard the third prong of the ‘trilemma’ (the blatant lie) as an available option.”

          Scalia went on to dismiss the contention that silence in an investigation is an “illusory” option because silence might be used against the person or because the interviewees might not know that they can remain silent: “In the modern age of frequent dramatized ‘Miranda’ warnings, that is implausible.”

Scalia finally considered the argument that §1001 can be an instrument of prosecutorial abuse but concluded that the remedy for that potentiality lies with Congress to redraft the statute. (Section 1001 was amended after Brogan’s conviction, but the amendments did not address the “exculpatory no” issue.)

          Justice Ginsburg, along with Justice Souter, voted to affirm the conviction because Brogan’s false denial clearly fell within the terms of the statute. They wrote separately to point out “the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes.” She also noted that if Brogan had counsel at the interview, the lawyer would have advised Brogan to amend his answer when the federal agents told him that they had evidence that he had received money from the company.

The Brogan case shows that the Flynn situation that has provoked conservative outrage and an extraordinary Justice Department action is hardly unique. That courts before Brogan case had carved out an “exculpatory no” exception to §1001 indicates that similar law enforcement techniques had been used many times before Flynn was interviewed. Indeed, it has been a common law enforcement tactic: Ask the person about what is already known. If the person admits to the deeds, he might be turned into a cooperating witness. If he denies it, prosecute him under §1001.

If the Flynn situation was egregious, Brogan’s encounter was even more so. Flynn was not told that the agents were conducting an investigatory questioning of him or, as Barr notes, was not given any warning. Barr indicates that such a prelude is standard policy, but Brogan was not told them either. Indeed, the agents were actively misleading Brogan when they only told him they were investigating the company. They seemed to want his guard to fall.

          Flynn was not played the tape of his conversation with the ambassador, but assuming Flynn has even a modicum of sophistication about intelligence activities (surely the president would not appoint someone who was incompetent), he should have known the possibility that such a tape existed, and Barr indicates that he did. (If so, why did Flynn blatantly lie?) Similarly, the agents did not tell Brogan before the questioning that they had documentary evidence of the payments, but this was even worse than the Flynn situation because Brogan could not have reasonably known about the documents.

          The Barr and the conservative commentators maintain that the point to the FBI’s actions was to get Flynn to lie, and, therefore, the questioning was not a bona fide investigation. (Have they asked the agents what their motives were?) The Brogan Court did not speculate on the motives of the federal agents, but those government officials had good reasons to want Brogan to lie. The usual statute of limitations for federal crimes is five years, which means that a person must be charged within five years from the time of a crime’s commission or he cannot be prosecuted. That period had run out on the earlier bribes the company paid Brogan and was fast elapsing on the last payment. However, when Brogan lied, a new crime was committed that would not only permit its prosecution but also allow evidence at his trial of all the payments, something that the agents undoubtedly knew. Surely, they had reasons to get him to lie.

          The Supreme Court in 1998 recognized that the statute was susceptible to abuse and, as Ginsburg said, could be used by law enforcement to manufacture crimes. But, as Scalia noted, lying is not the answer. If the falsehood was not appropriate for Brogan, how could the sophisticated Flynn think that he had a right to lie? If silence was the right answer for Brogan, as Scalia indicated, surely it was for Flynn, too.

The Justices of the Supreme Court said that any remedy had to come from Congress by amending §1001. That was over twenty years ago. I know of no conservative civil libertarians who rose up protesting about Brogan’s conviction and jail sentence. I know of no conservative civil libertarians who have proposed changes to the statute to prevent possible abuses. Where have all those conservative civil libertarians been all this time? I guess they were quietly waiting for the right moment, waiting for Michael Flynn to come along.

Bill Barr also told CBS: “I was concerned that people were feeling there were two standards of justice in this country. . . . There’s only one standard of justice. . . . It doesn’t matter what political party you’re in, or you know, whether you are rich or poor. We will follow the same standard for everyone.” If this is not just empty rhetoric, and if the Flynn decision was not based on politics, and if he truly wants one justice for all, we should expect that he will undertake a review of all §1001 prosecutions. And, although I have no idea of where James Brogan is or whether is even alive, Barr should be considering advocating a pardon for him.

          Oh yes, about liberals being transformed into conservatives when mugged. I have been robbed twice at knifepoint. And I am strongly anti-conservative. Perhaps more so now than I have ever been.

          And, really, why did Flynn lie?

(The next post will by Friday, May 15.)

Justice Blinded

          The Department of Justice overrode a sentencing recommendation by its frontline prosecutors. The defendant was the politically connected and presidential friend Roger Stone. The four prosecutors resigned from the case as a result.

          The Department of Justice (finally) said that it would not prosecute an FBI agent involved in the Russian investigation even though the president has asserted, without giving supporting evidence, that Andrew McCabe should be prosecuted.

          The Attorney General has appointed a special counsel for the confessed criminal and politically connected Michael Flynn, who is awaiting sentence. Reports indicate that other criminals who are connected to the president may be in line for preferential treatment.

          Attorney General William Barr claims that the president has never told him how to handle any case, and Barr has said that it is impossible for him to do his job when the president tweets about individual Department of Justice cases. This complaint comes as a shock since Barr may believe in one-person (probably one-man rule) at least as much as the president does.

          Trump in response tweets that he has not interfered but that he has the absolute right to order how criminal cases should be handled. He is the chief law enforcement officer, he pronounces.

          An open letter signed by almost two thousand former prosecutors and Department of Justice officials say that Barr should resign. Bill Barr has not.

          Swamp creatures are pardoned and set free. Others are pardoned whose supporters have connections with the president. And now we wait to see if the sentenced, frog-like Stone will be able to bound back to his bog without prison for his crimes against America. Ribbit. Ribbit.

          Just another week in the modern United States. It is hard to assess whether all this is a big deal or not because we have all become desensitized to Donald Trump and those around him.

          The events highlight, however, how imperfect our government is. It makes us realize that much of our sense of good government depends on norms that have been established over the decades and not on the Constitution itself. The Constitution does not prevent a president from breaking the norms of impartial justice that seem essential to a fair America and thus, does not prevent a president from moving us towards autocracy. And the events, rather predictably, also bring misleading or ignorant statements by kneejerk defenders of whatever the president does.

          More than a few “distinguished” commentators and hosts on Fox News say that William Barr must follow the president’s directions “because the Attorney General works for the president.” Another objecting to a headline from a news organization said that “Bill Barr can’t ‘intervene’ in a Department of Justice matter because the prosecutors work for the Attorney General.” Such statements, both wrong about who employs Justice Department officials, indicate how far along the path of the cult of personality we have traveled.

          Our federal government is complicated, but one thing is clear: Our chief executive is not the equivalent of the chief executive of a family business. An Attorney General and other federal officials do not work for the president. He does not pay them, and no one in the government openly pledges fealty to the president. To take office, an attorney general and other federal officials must vow: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office. So help me God.”

          The Attorney General is supposed to work for all of us (we do pay his salary after all), not for the president alone. The lines of authority, however, are muddled. The president does have a power akin to an employer; he can remove an attorney general. Furthermore, since the president has been given the constitutional duty to “take Care the Laws be faithfully executed. . . .” he can set the priorities and policies for the Department of Justice and the Attorney General. There has been an established norm that a president should not dictate how a particular case must be handled, but the president has the constitutional authority to break that norm. Of course, if what is commanded is unconstitutional, the AG cannot–consistent with the oath of office–carry out the command, but if the directive is only unwise, the AG can be expected to be removed if she does not comply with the presidential wishes.

          The president can then seek a new attorney general, but that also is complicated. The Constitution does not give the president the power to appoint any Attorney General he wants. Instead, it says that the president “shall nominate” candidates to be federal officials, but the Constitution goes on to say, “and by and with the Advice and Consent of the Senate, shall appoint” the Attorney General and other federal officials. The appointment power is a joint one of the president and the Senate. The Constitution does not constrain the Senate in how it should use its power. It is only a norm or a convention that the Senate gives great deference to the presidential nominations. Nevertheless, the Senate has the right, for any reason it finds sufficient, to reject a particular person as Attorney General.

(Concluded February 24)