Monday, February 13, 2017

HOW CAN THE NATIONAL SECURITY ADVISER AVOID A FEDERAL CRIMINAL INDICTMENT: DON'T LIE TO THE FBI

The dead of night. My phone rings. No less than a beleaguered Michael Flynn seeking advice again. For his sake I don't answer. These calls I've learned may be recorded who knows by whom or why.


Speaking to the Ambassador
Before we explore whether or not our new National Security Adviser has broken federal laws we can certainly agree that like the boss he serves, he is not competent. Only in Washington for a few weeks and he's already under threat of criminal prosecution under the Hood Act for undermining the foreign policy of the former administration in recorded calls to a foreign power's ambassador. It will depend on the recordings themselves as to whether his actions rise to the level of a crime. 

But the FBI investigates in mysterious ways. If they can't pin a criminal case based on the facts the most effective way to force a guilty plea to a federal crime under federal law is merely to establish that the defendant lied to the FBI. In fact the real threat from federal prosecution comes if he told the investigating FBI agents the same lies he told to the Vice President. If so, recent history of FBI investigations should give the National Security Adviser cause to make ever more late night calls to federal criminal defense lawyers in need of sleep.

The FBI's treatment of former House Speaker Hastert in a hush money case was unjust because they used his lies to the FBI about why he went over the $10,000 banking withdrawal limits to force a leveraged federal criminal plea to effectively punish his admittedly disgusting but unprosecutable sexual abuse of children which at the time allegedly committed was not even a federal crime. Martha Stewart was also undone not so much for the underlying allegations of stock manipulations the FBI suspected but couldn't prove but for being caught in not being honest to the FBI.

Here's what I wrote about the Hastert case at the time:

He stated that he didn't trust the banking system when in truth he was paying hush money. So what does the FBI do? Rather than investigate the possible blackmail Hastert was subjected to, it pulled out the infamous Martha Stewart option of charging federal felonies for not being honest with FBI agents. When one ponders the Stalinist aspect of these statutes how can one help but think they are un-American.
My problem here is with the federal criminal law. It simply should not be a crime to lie to FBI agents. It gives them too much power. If anything our criminal justice system actually provides incentives for law enforcement officers to commit perjury and those officers who do lie in official reports or under oath should be disciplined and prosecuted but often aren't. And it clearly gives them the ability to leverage that power in such a way as to force guilty pleas in cases where there is insufficient evidence to win a conviction on the actual criminal act under investigation. 

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