While much has been written about the entrapment of Michael Flynn by the ethically challenged Andrew McCabe and his accomplice Peter Strzok, little discussion has been devoted to the constitutionally dubious federal law under which he was charged. Most commentators have noted in a cursory fashion that it is a felony to mislead the FBI, and then quickly moved on to the latest machinations of the ridiculous Mueller investigation. But the trap set for Flynn wouldn’t have been possible but for a Stalinesque statute that has been denounced by jurists as ideologically diverse as William Rehnquist and Ruth Bader Ginsburg.
Most Americans believe that, to be convicted of perjury, one must lie under oath in some legal proceeding. But the Federal False Statements Act (18 U.S.C. § 1001), passed in the 19th century to punish con artists for presenting fraudulent invoices to the government, is now being selectively deployed by corrupt federal officials to entrap anyone who — under oath or not — makes some inaccurate statement to a government official. It doesn’t matter if any crime, financial or otherwise, has actually been committed. An indictment can be secured even if, as in Flynn’s case, there has been no prior warning of potential legal jeopardy.
If that gives you the creeps, you’re not alone. That notorious right wing agitator, Supreme Court Justice Ruth Bader Ginsburg, wrote an opinion in 1998 outlining how this statute creates enormous potential for abuse by federal officials. She was concerned by “the extraordinary authority” the Federal False Statements Act “has conferred on prosecutors to manufacture crimes.” And Ginsburg was right to be concerned. That is precisely how the FBI, under the “leadership” of James Comey, used it. Nearly two decades before the FBI entrapped Flynn, she presciently described how such people could abuse the law for this purpose:
§1001 may apply to encounters between agents and their targets under extremely informal circumstances which do not sufficiently alert the person interviewed to the danger that false statements may lead to a felony conviction… the suspect is not informed of the right to remain silent. Unlike proceedings in which a false statement can be prosecuted as perjury, there may be no oath, no pause to concentrate the speaker’s mind on the importance of his or her answers.
This is of course exactly what happened to Michael Flynn when disgraced FBI official Peter Strzok and a second agent, Joe Pientka, showed up at the White House on January 24, 2017. In fact, former FBI Director James Comey recently bragged to MSNBC’s Nicolle Wallace that he personally made the decision to send the two agents to “interview” Flynn. Comey went on to boast about the way he and his underlings, taking advantage of the disorganization that characterizes all new presidential administrations during their first few weeks, intentionally flouted normal White House and FBI protocol for setting up such interviews:
If the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House counsel, and there would be discussions and approvals and who would be there.… I thought: “It’s early enough, let’s just send a couple guys over.”
The perpetrators of this disgrace, Andrew McCabe, Peter Strzok, and Comey himself, have since been fired of course. Not that the FBI was as pure as the driven snow before Comey took over. Similar skullduggery was commonplace under his predecessor, Robert Mueller. The latter’s tenure as FBI director was characterized by breathtaking incompetence, corruption, and partisanship. Not the least of his victims was the late GOP Senator from Alaska, Ted Stevens. His convictions were voided by U.S. District Judge Emmett G. Sullivan, who was outraged by the conduct of Mueller’s team. At that time, the New York Times reported:
Judge Emmet G. Sullivan, speaking in a slow and deliberate manner that failed to conceal his anger, said that in 25 years on the bench, he had “never seen mishandling and misconduct like what I have seen.… Again and again, both during and after the trial in this case, the government was caught making false representations and not meeting its discovery obligations.
Judge Sullivan then named a special prosecutor to investigate whether the government lawyers who ran the Stevens case should themselves be prosecuted for criminal wrongdoing, which eventually resulted in a blistering report on the conduct of Mueller’s prosecutors. Now, in a delicious example of poetic justice, Judge Sullivan will also decide the fate of Michael Flynn. The same judge who was so angered by Mueller’s grotesque mismanagement of the Stevens case will now decide what punishment, if any, Flynn will receive for being less than forthcoming during what he was led to believe was just an informal discussion.
Judge Sullivan probably smells a rat in the Flynn case. His request for additional records from Mueller, including those relating to the January 2017 FBI interview, may mean he suspects Flynn was tricked into pleading guilty to violating the Federal False Statements Act. Sullivan is all too aware of Mueller’s malleable ethics, has zero patience with prosecutorial chicanery, and is certainly familiar with the potential abuses of the statute Flynn allegedly violated. Moreover, he cannot have been pleased by Mueller’s gratuitous attacks on Flynn in the former’s most recent court filing. The Hill reports the special counsel rebuked Flynn as follows:
Nothing about the way the interview was arranged or conducted caused the defendant to make false statements to the FBI on January 24.… The defendant chose to make false statements about his communications with the Russian ambassador weeks before the FBI interview, when he lied about that topic to the media.… The Court should reject the defendant’s attempt to minimize the seriousness of those false statements to the FBI.
Judge Sullivan doesn’t care about lies told to the media. And he isn’t likely to throw the book at Flynn for violating the Federal False Statements Act if the alleged lie wasn’t material to the investigation. As liberal defense lawyer Alan Dershowitz has repeatedly explained, “If the FBI already knew the answer to the question… and asked it only to elicit a lie, should that lie be deemed material?” Of course not. Which brings us back to Justice Ginsburg’s concern about manufacturing crimes: Is this law worth the human cost — it has ruined Flynn — and the price paid by the taxpayers to persecute American citizens? Nope. It’s time to repeal this relic.