For decades, the legal community has decried common practices used by prosecutors to coerce pleas from defendants. Prosecutors often stack up charges and then drain defendants until they agree to pleading guilty. There was a time when such abuses were regularly called out in leading newspapers. These are not those times.
The Flynn case was a textbook example of these abuses but media commentators quickly adopted the “anyone who pleads guilty must be guilty” mantra. Suddenly, the “proof is in the plea” regardless of false representations, withheld evidence, and conflicting findings in the Flynn case.
The only acceptable take in the media is that the motion to dismiss the Flynn case is an outrageous politicalization of the justice system. This narrative is only possible by ignoring the long-standing questions over the handling and charge in the case. Indeed, it is telling how both controlling law and countervailing facts have been uniformly (and knowingly) ignored in order to portray the case as a virtual immaculate prosecution.
Much of the analysis of the Flynn case notably starts half way across the field with the guilty plea of Flynn rather than at the start. the New York Times recently published an editorial entitled “Don’t forget, Michael Flynn pleaded guilty. Twice.” Such coverage pretends that there have been no questions raised about the underlying charge. The investigators concluded (and told FBI officials) that they did not believe that Flynn intentionally lied when he denied speaking about sanctions with the Russian ambassador. There was no reason to do so. Flynn knew that the FBI had intercepted the call and told the investigators that they could check the transcript. Moreover, Trump had publicly called for reexamining the entire Russian relationship, including sanctions. Most importantly, it was perfectly legal for the incoming National Security Adviser to encourage the Russians not to retaliate pending such a review by the incoming Administration.
While acknowledging that he failed to recall the sanctions discussion, Flynn contested the charge on the basis of intent and eventually spent virtually all of his money, including having to sell his house. He only pleaded guilty when the Special Counsel’s office threatened to charge his son and offered in exchange a plea to a relatively minor charge (with little or no jail time expected). What is striking about these facts is that analysts citing the plea routinely omit all of them to make the case look cut and dry. The issue was never whether Flynn’s statement was false but his intent and the materiality of the statement. Even though I supported the appointment of a Special Counsel, I raised these concerns years before the motion to dismiss was filed.
Nevertheless, the New York Times editors have warned “It’s hard to overstate how dangerous this is. It is a small step from using the Justice Department to protect your friends to using it to go after your political enemies. In other words, watch out, Joe Biden.” Of course, it was the Obama Administration with Biden as Vice President that started an investigation into its opponents based on Russian collusion allegations later found to lack any credible foundation. A long list of Obama officials admitted that they never saw any direct evidence of such collusion. Moreover, we now know that FBI agents early on warned that the material in the Steele Dossier (funded by the Clinton campaign) was not just unreliable and likely Russian intelligence misinformation. The Obama Administration still launched a full and long investigation of the Trump campaign and its officials. That was no “small step” but a giant leap.
As a criminal defense attorney, I have been personally involved in cases where innocent defendants must choose between effective bankruptcy (and the risk of a longer incarceration) against a plea for one or two counts. To his credit, Harvard Professor Noah Feldman was one of the few to acknowledge the problem of false pleas: “True, we all understand that, faced with the awesome power of prosecution, defendants sometimes plead guilty even if they aren’t. Liberals should be the first to acknowledge that in the real world, a guilty plea doesn’t necessarily mean the defendant committed the crime.” After acknowledging that reality, however, Feldman immediately dismisses it in a spellbinding level of circular reasoning: “But when the crime was lying, and the government still acknowledges that the defendant in fact did lie, there is less reason to worry that the defendant has been railroaded.”
Once again, the issue was never the falsity but the intent of the statement. Proof of a false statement to federal investigators under Section 1001(a)(2) requires more than a simple false statement. Rather, the false statement must be “material” to the underlying investigation. The motion to dismiss actually contained a discussion that has long been made by defense counsel as the correct reading of the law: “The materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular ‘subject of [their] investigation’ …[and] prevents law enforcement from fishing for falsehoods” to charge someone. Newly released documents show officials openly fishing for any criminal charge against Flynn long after the counterintelligence operation from no criminality. None of that evidence was put before the Court when it reviewed the Flynn plea, which was uncontested.
Moreover, the statement of the Justice Department should be celebrated by those who believe in due process for criminal defendants. The Flynn filing represents a powerful statement against prosecutorial coercion and abuse. It will be cited for years, including by this criminal defense attorney, in future cases. It is a powerful affirmation in a case with classic elements of coercive prosecutorial misconduct. Yet, the media has denounced it and the very notion of challenging trial prosecutors in such a case.
We now know from the Justice Department that both agents “had the impression at the time that Flynn was not lying or did not think he was lying.” It was not until much later that Mueller’s people decided to use the discrepancy for a charge. It is common for such false statements to be flagged to coerce defendants into plea agreements, the very point Feldman just made.
Notably, when Flynn was charged, Feldman explained that it made it more difficult for Trump to fire Mueller because “the content of the Flynn-Kislyak conversations deepens the narrative that special counsel Robert Mueller has been building.” There was certainly a narrative like that in the media, but there was no real evidence of Russian collusion. Indeed, at the time of the Flynn plea, Mueller already knew that. However, the key remains the “narrative” not the evidence.
These facts simply do not fit the narrative. Suddenly, the judge’s resistance to granting the motion becomes ignoble and, God forbid, Barr move could be viewed as noble. Likewise, while analysts and academics herald Sullivan’s tough scrutiny of the motion, none are asking why Sullivan did not appoint an outsider or anyone to look into credible allegations that the original prosecutors against Flynn committed serious constitutional violations in withholding evidence and misrepresenting facts to the Court. It is also not relevant that FBI officials involved in the Flynn case like former Deputy FBI Director were found to have lied repeatedly to investigators. It is easier to say that the “proof is in the plea.”
“In like Flynn” once meant that you lived a charmed life of access or success. Today, it appears the media has adopted a chilling “out like Flynn” view, meaning some people simply do not deserve fair judicial or media consideration. Indeed, it is now an article of faith to dismiss any question about the conduct of the prosecutors in the Flynn case, even if it means adopting the long discredited view that only the guilty plead guilty.