Alan Dershowitz on the Flynn case
Another smart piece from Dershowitz, who says it’s certainly possible that Flynn lied to the FBI and that the FBI acted improperly. Here’s how he describes the latter:
The FBI knew the truth [about what Flynn had actually said, and to whom]. They had recordings of the conversations. Then why did they ask him whether he had those conversations? Obviously, not to learn whether he had them but, rather, to give him the opportunity to lie to federal agents so that they could squeeze him to provide damaging information against President Trump. If you do not believe me, read what Judge T.S. Ellis III, who presided over the Paul Manafort trial, said to the prosecutors: “You do not really care about Mr. Manafort’s bank fraud. What you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.”…
Defenders of the tactics used by special counsel Robert Mueller argue that his potential witnesses are generally guilty of some crime, such as lying to FBI agents, and that may well be true. But they are targeted not because of what they may have done. They are targeted for what they may know about what the real target may have done. Then they, and their relatives who may also be complicit, are threatened with imprisonment and bankruptcy unless they plead guilty and cooperate with prosecutors.
So the real question, which transcends the Flynn, the Manafort, and even the Trump investigations, is whether these tactics should be deemed acceptable to use in our justice system. Is it the proper role of law enforcement to conduct criminal morality tests to determine whether citizens will tell the truth or lie when given the opportunity to do either by FBI agents? Is it proper to target individuals for such tests for the purpose of pressuring them into becoming witnesses against the real target?
Dershowitz goes on to add that anyone concerned with liberty should have the same attitude about such tactics no matter which party they’re used against. But few people have that sort of consistency—although Dershowitz does, and that’s why I admire him.
And these points of Dershowitz’s are exactly correct:
The function of law enforcement is to uncover past crimes, not to provide citizens the opportunity to commit new crimes by testing their veracity…
When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth. The FBI should not discourage the suspect from having his lawyer present during the questioning, if a false answer will subject him to criminal liability.
It is even worse when this is done in order to “get” an elected president. But the practice is wrong in the more general sense.
I’ve written a great deal about the Flynn case, and that’s because I think it is a highly important demonstration of a deep flaw in our system of justice, one that needs correcting but is unlikely to get it.
Agree. Two more points:
1. Flynn’s lawyer is a notorious Hillary fixer. Flynn probably thought that would help him. Instead his lawyers took a lenient agreement and screwed it up.
2. You have to wonder if perhaps Flynn was NOT a citizen, the judge could have helped him – seems judges are usually for non-Americans right?
I think the record of Special Prosecutors’ charging “process crimes” is disgraceful. Dershowitz is exactly right.
“To make a thief, make an owner; to create crime, create laws.”
? Ursula K. Le Guin, The Dispossessed
[and just as Kafka stole from the chinese… but used a roach instead of a butterfly]
“The more laws and order are made prominent, the more thieves and robbers there will be.”
? Lao-Tzu
The Dersh piece is a little outdated.
He wrote it before Judge Sullivan opened up a can of whup-ass on General Flynn… for falsely suggesting that the FBI wronged him.
At best, a lie speaks to character. While an omission to human frailty.
At worst, it is used to prosecute or persecute a la warlock hunts and trials.
This immoral maneuver bears an uncanny resemblance to the concept of “Jew… White privilege”, diversity or color judgment, whatever-phobia, etc. that paints a class of people with broad, sweeping strokes.
for falsely suggesting that the FBI wronged him.
It would be condign punishment for you to be given similar treatment by law enforcement, and to suffer imprisonment for it.
for falsely suggesting that the FBI wronged him.
What does the Hillary voter think about her recent polling ?
This stuff is not new. Patrick Fitzgerald used the exact same tactics on Libby. In fact, I never believed that Libby lied or that he disclosed the ID of Valerie Plame. Tim Russert did so and Armitage was his source and that for Novack.
I did not forgive Bush for failing to pardon him.
As I have mentioned before, never, never ever, answer questions from LEO; starting with the county deputy to a FBI special agent to a prosecutor, without a lawyer you trust present. And, never trust a lawyer with ties to the Clintonistas and those similarly tied to the deep state bureaucracy. Flynn’s problem was believing his status as a truly honored military man would somehow protect him.
Naive.
As Mark Steyn said, everything in the world is recorded, on, at least, a cell phone.
Except FBI interviews.
Got to mean something and it’s not good.
where does this fit in?
Victor Davis Hanson: We are witnessing a soft coup of the Trump Administration
https://www.youtube.com/watch?v=KhZ-5kdz-Qo
This stuff is not new. Patrick Fitzgerald used the exact same tactics on Libby. In fact, I never believed that Libby lied or that he disclosed the ID of Valerie Plame. Tim Russert did so and Armitage was his source and that for Novack.
See the commentary of Thos. Sowell on that case. See Wm. L. Anderson’s case reports on prosecutorial misconduct in North Carolina. See John Grisham’s account of how the prosecutors office in Pontontoc County, Okla is run. Trouble is that a non-zero proportion of this nation’s prosecutors are dirty and care only about notches in their belt. We need ombudsmen with the authority to sanction prosecutors for this. Judges do nothing.
Dersh is correct of course; he usually is on questions of existential justice.
I wonder if he stays with the Dems because, as he says, the GOP does the same thing when the shoe is on the other foot.
But then, I don’t know his position on all-abortions, all-the-time.
That alone is a deal-breaker for me, if all other things about the parties were equal (and it looks increasingly like they are, at the top levels, although the nominal party members have wildly divergent priorities).
https://libertyunyielding.com/2018/12/19/flynn-sentencing-postponed-outburst-from-the-judge-sudden-turkey-syndrome/
“It’s possible that Flynn could be indicted on the conspiracy charge (the “hiding the real client” charge) as well as the FARA paperwork charge. Many people think that he has basically chosen the lesser of two evils by taking a plea on the false information charge and being spared something worse with the Turkey charges. As long as he sticks with the false information plea, Mueller won’t come after him on the Turkey-lobbying charges.
That seems to be what Judge Sullivan perceives about this whole thing. Conservative Treehouse has a good treatment along those lines, detecting from Sullivan’s line of questioning on Tuesday that he – the judge – saw clearly the comparative options before Flynn. If you get past the media’s misleading depiction of what happened, which the Techno Fog thread will help with, you’ll see that Sullivan wasn’t berating Flynn as a justification for punitive sentencing. He appeared to be mulling the gravity of what Flynn might face if his false information plea went south.
Is Sundance at Conservative Treehouse right that Sullivan seemed to be articulating the decision matrix by which Flynn chose to take the false information plea – in fact with a sort of sympathetic vibe? I don’t know. Both Catherine Herridge and Sara Carter said they thought Sullivan seemed to be hoping Flynn would withdraw his plea. A sympathy vibe for Flynn would not be out of the question.
It was a strange day. So strange that it really made me wonder what’s going on here that we can’t see.”
Not a big surprise, except for some of the details.
I wonder if McCain’s ire was driven, among other reasons, by the galling fact that Trump won the presidency when McCain — it was his turn! — could not.
https://libertyunyielding.com/2018/12/19/court-docs-mccain-associate-gave-dossier-to-buzzfeed-which-published-it-in-january-2017/
https://theconservativetreehouse.com/2018/12/18/judge-emmet-sullivan-delays-sentencing-of-michael-flynn-for-90-days/comment-page-2/#comments
“I see a good bottom line here; that Judge Emmet Sullivan is well aware of the intricacies of the dynamic. Flynn likely didn’t lie; however, falsely admitting to a lie is a much better option than having team Mueller saying President Trump employed an unregistered foreign agent as his national security adviser. See the dynamic?
Judge Sullivan is not making declaratory statements inasmuch as he is probing and outlining his understanding of Flynn’s position.
As a consequence of this dynamic, Judge Sullivan cannot vacate the plea that Flynn wants or else he positions Flynn to become a target of the Turkish lobbying case that was just unsealed yesterday.
Sullivan’s questions about the current status of Flynn’s cooperation indicate he was seeking to discover if Flynn held immunity in that case; Flynn does not.
If Flynn lawyers had gained full immunity for cooperation in the Turkish lobbying conspiracy case; it’s likely Sullivan may have vacated current Flynn charges. However, with Flynn still legally vulnerable in the Turkish case, any judicial decision favorable to Flynn could expose him to criminal charges in the lobbying case.
So Judge Sullivan delays sentencing 90-days, hoping the Turkish Lobbying conspiracy case is completed -or- at a status where Michael Flynn cannot be enjoined in the criminality therein.
That’s my take.”
Sundance’s conclusion may or may not be correct, but assuming the Turkish case will be wrapped up in 90 days is IMO overly optimistic.
So, after all the sentencing is done in Flynn’s case, what is to stop Mueller from passing along the FARA case to someone else to prosecute anyway, especially since he apparently didn’t get Flynn to implicate Trump on collusion or much of anything else.
Manju:
Dershowitz’s points hold true whatever the judge said or didn’t say.
At the start, I asked on my show why he wasn’t Mirandized and why nobody else was mentioning that.
Now I’m hearing that. But I doubt they got it from me. 🙂
Recently watched “The Lives of Others” a second time. Hard not to think of Mueller and his ‘dream team’ this time around.
I would like to see a persuasive explanation for why the FBI neither records nor videos witness interviews and/or subject interrogations. Rather, I’ve read that the only memorializing of testimony is an agent’s notes transferred to a “302” form at some point after the interview.
If true, why is it permissible & unquestioningly accepted practice for a government agency with the enforcement powers of the FBI to do that? …which leaves a defendant with zero means to reinforce on the one hand, or contradict on the other, what he may or may not have actually said during the interview.
ColoComment…what parker said is gospel-truth:
“never, never ever, answer questions from LEO; starting with the county deputy to a FBI special agent to a prosecutor, without a lawyer you trust present.”
The persuasive explanation for their decision to not record/video interrogations is precisely so that only they have the “he said” to put before a judge. The problem with basically honourable men like Flynn is they think their honour is a shield & an obvious protective barrier to BS from LEOs…It isn’t.
I’ve been having a hard time understanding what the rule of law means in America since Obama was elected in 2008.
Victor Davis Hanson files everything away and can pull out a long catalog of pertinent examples at a moment’s notice. I’m too lazy to do that now, but most readers here are aware of all the wacky legal stuff which has gone down since 2008 — the soft Trump coup being the latest and greatest.
For ten years I’ve been wandering around in a fog, mumbling to myself, “Can they really do that?”
huxley on December 19, 2018 at 11:55 pm at 11:55 pm said:
I’ve been having a hard time understanding what the rule of law means in America since Obama was elected in 2008.
* * *
It started long before then, it’s just more noticeable on the internet.
Check out some of the totally bizarre Supreme Court decisions from FDR’s time (growing wheat on your own farm to feed your own animals is a violation of some laws about interstate commerce), and more recently (Kelo: your city can take your property and give it to a private entity — even if they don’t do what they promised, you can’t get it back). There are plenty more.
And don’t get me started on civil & criminal forfeiture.
Yes, they really can do that.
Why are FBI interviews not recorded electronically, but rather transcribed from the interviewing agent’s memory?
Years ago my wife and I visited an exhibition of the works of the Impressionist painter Camille Pissarro. Among the paintings were also a fair amount of his written correspondence from the time when he was active. In one he describes a technique in which he visits, say, a country scene that he wants to paint. Rather than paint it then and there, he sits and observes the scene, the changes in lighting, and the various items that come and go across the area. He then returns to his studio and creates a work about the scene he’s been observing all day. By doing it this way he captures not only the scene at a moment in time but with his impressions and feelings about the scene and his time in it. The work, in the end, is not a pure representation of the scene, it is a fiction of Pissarro’s memory and mind.
Likewise these 302 interview reports. I suspect that is a feature not a bug.
. Trouble is that a non-zero proportion of this nation’s prosecutors are dirty and care only about notches in their belt.
Judge Sullivan has now joined the Resistance and ruled against a long list of Trump/Sessions rules on amnesty.
I guess this explains what happened with Flynn.
On Wednesday Judge Sullivan joined the judicial division of the #Resistance. He struck down most of the policies former Attorney General Jeff Sessions had issued to prevent the abuse the law applicable to asylum claims. Sessions had clarified the proper application of the immigration law’s asylum provision in Matter of A-B and in the related Policy Memorandum. No longer were alleged victims of abusive husbands or alleged victims of Central American gangbangers to be given a free pass to seek asylum.
He even ruled that ICE has to find the rejected (probably imaginary) claimants and bring them back to the US for hearings. He has morphed into another left wing activist judge. Flynn is screwed.
Flynn is screwed.
Trump can pardon him, and should.
As I always tell my clients, if you go to court, you might as well go to Vegas and put all your money on Black 22. Experience tells me judges do whatever they want, and then find legal authority to justify their decisions. Your case is as likely to be decided by what the judge had for breakfast as what the law is.
I agree with AesopFan that the Turkey charges were what led Flynn to plead out. Otherwise, he could easily have found a conservative legal foundation to defend him pro bono, or even started a GoFundMe page, as several Mueller defendants have done. My defense would have been, “These guys said they were coming to discuss a counterintelligence matter, and I had no information as to their clearances or need-to-know. So I had to conceal what I was doing, just like my mentors, John Brennan and James Clapper!”
Trump can pardon him, and should.
I think he will now. I thought Sullivan would throw this crap out like he did with Stevens but he seems to have morphed into a swamp creature. Too bad.
The FARA law was passed in 1938 and there have been seven prosecutions with three convictions in 80 years. I suppose it was a Nazi-era fifth column law but if it were to be really enforced now, half of Washington would be in court.
It is really galling to see the Podestas, whose behavior resembled Manafort’s, in Bill Ayers’ situation. “Guilty as sin and free as a bird.”
As for talking to LEOs,
I had a cop ask me if I knew how fast I was going.
How was I supposed to answer that?
“Yes. I knew I was speeding.”
“No. I drive with no knowledge of by bearing or velocity.”
“As fast as the guy in front of me.” seemed reasonable.
“Why did you pick me out?”
Art Deco,
Thanks for pointing to Mr. Grisham’s book.
There is a writeup of the case at
https://newsok.com/article/3299346/judge-tosses-lawsuit-against-john-grisham .
The article, published 9/18/18, begins:
(I tried to find out whether newsok.com is a site of The Oklahoman newspaper or an independent site, but all I could find is that The Oklahoman’s main site is listed in the left sidebar of the article. The paper appears not to save such old items in an archive. Here endeth the investigation. Personally, I imagine newsok.com is an arm of the paper.)
The article links to a pdf of the Opinion of the Judge:
http://downloads.newsok.com/documents/s17grishamsuit.pdf
As lagniappe, there is at the bottom of the Opinion a link to a very short clip from Casablanca:
https://www.youtube.com/watch?v=nM_A4Skusro
Mr. Grisham also posted a piece on the case at his website:
http://johngrishamonline.com/oklahoma-district-attorney-bill-peterson-to-retire/
Ed,
Back in the Day of the Dinosaurs, a friend of mine was driving up Chicago’s Outer Drive (along the lakefront) from Hyde Park to downtown. As is so often the case, the traffic on the Drive was moving along smartly at roughly around 55-60 m.p.h., somewhat over the legal limit of 45.
My friend was tooling along at the same general speed,* when a traffic cop pulled her over for speeding.
“But officer,” she said, “I was only driving at the same speed as everyone else.”
“Sure,” he answered, “but you’re the one we caught.”
Ya win some, ya lose some.
.
(No, that’s not at all in the same category as the Flynn mess, or many, many others. Not making light of those.)
Call Northside 777 is an excellent movie, by the way. Speaking of people about to executed, as in the lawsuit against Grisham — the newsok site says one of the defendants in the murder case was released just five days before his scheduled execution.
Herr Müller is a typical German nazi
Julie. An example must be made 🙂
Loved Call Northside 777.
A federal judge on Wednesday dismissed a libel lawsuit against best-selling author John Grisham over a nonfiction book he wrote about the 1982 killing of an Ada cocktail waitress, calling the petition’s claims “not plausible.”
William H Peterson put two innocent men in prison in 1987, they each sat there for 12 years, and one of the two was stuck on death row for years to boot. These weren’t innocent mistakes. Peterson made use of perjured testimony from a corrupt forensic technician employed by the Oklahoma state police and also made rather unprofessional use of jailhouse snitches at trial. Peterson was later humiliated when DNA evidence not only exonerated the two men, but identified the actual perpetrator. Sloppy local police and the pair of bozos the state police sent to work on this case hadn’t honed in on this man at all, even though he was the last person witnessed speaking to the deceased. A normal man would have been mortified by this chain of events. Not Peterson, who has been defiant about it for 19 years and had the audacity to sue Grisham. Were Pontontoc County a community with a decent political culture, the sachems of the local bar would have seen to it that Wm. Peterson had serious opposition come election time and the public would have tossed him out on his tuchus. No such justice. Peterson retired without incident in 2008 and his position was turned over to his protege, who had worked for him since 1987. Grisham says in his book, ‘Ada’s a nice town…’ No it ain’t.
The defendants, by the way, were two men past 30. One was a town drunk who had a history of petty public order offenses (e.g. disorderly conduct) but nothing else. The other was a middle school science teacher who was cleaner than a hound’s tooth. He was considered ‘suspicious’ because he was a 3d drawer friend of the town drunk and because he happened to have called in sick to work the day the deceased’s body was discovered. There was no evidence that either man knew the deceased from a cord of wood and no evidence that the science teacher had ever set foot in the bar where the deceased worked. (There actually was testimonial and documentary evidence that the town drunk had spent the evening with his mother watching rented movies with rented equipment, an unusual activity in small town Oklahoma in 1982). To anyone remotely familiar with the sociology of crime, these two were a most implausible pair of perpetrators. Per Grisham, the municipal police (who one might expect had limited experience with this type of crime) were only a minor contributor the whole train-wreck. It was the state bureau of investigation whose baby this was. So much for specialized expertise.