Flynn Was Innocent All Along: He Was Pressured to Plead Guilty

by Alan M. Dershowitz, GATESTONE INSTITUTE
May 8, 2020 at 8:00 am

• From a legal and policy point of view, encouraging the FBI to misuse its legitimate authority to investigate past crimes, solely to create future crimes is both immoral and illegal.
• Let us hear now from the former civil libertarians for whom any violation of law is permissible, as long as it is directed at a Trump associate.
• Anyone who knows how the system works in practice would understand why an innocent man—or a defendant in a close case—might be coerced into pleading guilty…. in this case, it is alleged that the government threatened, if Flynn did not plead guilty, to indict his son.
• There must be a single standard of justice and civil liberties — including the presumption of innocence — that transcends partisan politics. This message has been forgotten by both parties.

The Justice Department has agreed that General Michael Flynn did not, in fact, commit any crime. Let us hear now from the former civil libertarians for whom any violation of law is permissible, as long as it is directed at a Trump associate. Pictured: Flynn, then US National Security Adviser speaks during at a press briefing at the White House in Washington, DC, on February 1, 2017. (Photo by Nicholas Kamm/AFP via Getty Images)

More than a year ago I wrote that it was clear General Michael Flynn should never have pleaded guilty because he did not commit a crime. Even if he lied to the FBI, his lie was not “material.” For a lie to be a crime under federal law, it must be material to the investigation – meaning that the lies pertain to the issues being legitimately investigated. The role of the FBI is to investigate past crimes, not to create new ones. Because the FBI investigators already knew the answer to the question they asked him—whether he had spoken to the Russian Ambassador—their purpose was not to elicit new information relevant to their investigation, but rather to spring a perjury trap on him. When they asked Flynn the question, they had a recording of his conversation with the Russian, of which he was presumably unaware. So his answer was not material to the investigation because they already had the information about which they were inquiring.

From a legal and policy point of view, encouraging the FBI to misuse its legitimate authority to investigate past crimes, solely to create future crimes is both immoral and illegal. That is why Congress added the word material to its statute.

Because Flynn’s answers were not material to what the FBI said it was investigating –- a violation of a never-used law, the Logan Act, that prohibits private citizens from negotiating with foreign governments — they did not constitute a crime.

CONTINUE