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. 

HOW PROSECUTORS CONTROL & DIRECT AMERICAN FEDERAL GRAND JURY INDICTMENT DELIBERATIONS

In a well-known yet hidden truth of federal criminal law, federal grand jury's don't indict people - federal prosecutors do. It's the United State's prosecutors aided by government agents from the FBI, the DEA and fraud inspectors from a variety of Government agencies who bring cases to American grand jurors and direct the deliberations until the desired indictment is delivered. 

Grand Jury with victorious Prosecutor
after delivering Indictment

The grand jury hears only the evidence deemed worthy by the government. In practical terms this means that unless the prosecutor does not want an indictment, little or no evidence that could help the defendant will ever be given to members of the grand jury. It's an unfair process, but of course it's meant to be. 

The objective of an effective prosecutor is first to mold the charging document or indictment. During that process the prosecutor seeks to iron out or at least gain useful knowledge of possible defenses to a potential criminal case. It's not unusual for the grand jury to hear snippets of evidence of uncharged misconduct over a long course of time, even for weeks or months, especially in complex federal conspiracy and trafficking cases or complicated white collar fraud cases, until the prosecutor is satisfied that the case if contested by the defense can still be won at federal trial or better, that the defendant in the case can be forced to plead guilty. It's rare that the grand jury members will have the presence of mind, will power or strength of character to stop an inappropriate indictment from being issued by an ardent prosecutor. 

After all, the members of an American grand jury are relying on the prosecutor to not only give them the appropriate federal laws allegedly being violated, but also to provide the facts necessary to support a conviction under those laws. Nor is it likely to be considered prosecutorial misconduct for the federal prosecutor to unduly influence the grand jury's decision-making process as it's built within an often unfair federal criminal justice system that has a very high rate of success in forcing guilty pleas since many defendants come to believe that the criminal justice system is rigged in the government's favor.

In the federal prosecutions there's incentive to overcharge defendants at the grand jury level in order to gain leverage over defendants and to force a guilty plea with co-operation to indict other defendants. In fact in the Middle District of Florida in Tampa a defendant may receive a target letter, that advises the defendant that a grand jury has been convened to look at criminal conduct with the implicit threat that failure to respond, retain the services of a federal defense attorney and co-operate may result in a federal indictment. As a practical matter the prosecutor has such control and direction of the federal grand jury that the threats must be taken seriously. After a federal indictment the defendant with help from a federal criminal defense attorney must make an important life-changing decision, whether to plead guilty or have a federal trial.

POLICE AGENCIES TAKE PERSONAL PROPERTY WITHOUT INDICTMENT, HEARING OR EVIDENCE OF GUILT

Perhaps it should come as no surprise that police agencies make wish lists for forfeiture items. But forfeiture of property often occurs despite the fact that the rightful owner of the property is nether convicted nor charged with a federal or Florida crime. In fact across American your tax dollars are used to send police officers to special seminars where they're told which private items are worth taking from the citizens they're supposedly protecting. Jewelry is too hard to sell, computers too common, fast cars are just right. 


The New York Times even describes a sheriff who had his eye on a particularly Italian specimen of fast car which he and his deputies laid claim to after careful strategy and planning sessions to make the necessary arrest. Few would object to the forfeiture of property when linked directly to a criminal act. However, every forfeiture should arise only after charges are filed and then after a conviction is obtained for those charges. 

Just Don't Take My Pumpkin Frappuccino

In high profile complex criminal litigation the taking of property without a fair hearing before indictment and trial has become an effective and alarming means of depriving the alleged wrong doer of the means to fund an adequate defense. Unfortunately for everyone involved it also makes it difficult for defense counsel to buy that grandee pumpkin spice frappuccino he's had his eye on for the past hour at Starbucks, but let's not make this too personal.

Clearly national standards for federal and state police actions for forfeiture of property should include the following requirements:

1. A charging document, indictment or in states such as Florida a charging information where no grand jury is necessary for a criminal charge.
2. An assessment of how the property pertains to the charged misconduct. For example, establishing that the property was the ill gotten gains from a conspiracy to defraud or grand theft to  part of part of the charging document 
3. The right to an immediate hearing to contest the taking of property.
4. The burden of any pretrial hearing to be solely upon the government to establish why the property must be taken.
5. At the formal hearing the property owner should have the right to confront all of the state's witnesses as well as to call to the witness stand any witness including police officers, detectives and administrative officials within the police department who could shed light on the motives of the department for taking the property and their previous actions in other forfeiture hearings.

The goal should be to protect private property by restricting the use of forfeiture by prosecutors and police departments to only those cases where there's absolute necessity for the taking.