Few Have the Ability

The imbroglio surrounding the prosecution of former General Michael Flynn, also President Trump’s national security adviser for a short time, brings to mind a number of past experiences.

It is universal knowledge in this country that the Constitution provides that “[n]o person…shall be compelled in any criminal case to be a witness against himself” in the Fifth Amendment — in shorthand, we all have the right to remain silent.

Few, however, have the ability.

This fact of human nature is emphasized in criminal investigation as well in the prosecution and defense of those accused of crime. Confessions and statements by defendants are used against them all the time. The key word in the Fifth Amendment clause is “compelled.” A voluntary statement by an accused person may be, and often is, used against him. The contours and limits of what conduct amounts to compulsion is the subject of much case law. It is clear, however, that being under arrest (the status of which has its own marginal ambiguities) is ipso facto compulsion.

Any person under arrest must be given a specific warning that he has certain rights, including the right to not say anything, that if he does, it can be used in evidence against him, and that he may consult with a lawyer prior to saying anything. This warning rarely deters a suspect from talking. Many want, or say they want, to tell “their side of the story.” Some believe they can outsmart the interrogator. Such suspects are often wrong.

Federal law enforcement agencies, of which there are more than most of use realize, have several advantages. One significant one is provided by 18 U.S.C. § 1001 that makes it a felony to lie to a federal officer, such as an FBI agent. Probably more persons have been convicted of that offense than the underlying crime being investigated. Many federal agents deliberately try to lay “perjury traps” where they try to get a witness or suspect to lie when interviewed so they can be prosecuted under 1001 to provide a plea-bargaining chip. One prime example is Martha Stewart. The feds could not prove an insider trading case against her, so they seized on a mis-statement she made during an interview. Note: the FBI euphemistically refers to all official conversations as “interviews,” but they should always be regarded, at least potentially, as interrogations.

With this background in mind, what is happening to Michael Flynn has some troubling aspects.

It appears that the FBI and special prosecutor Robert Mueller’s team may have been out to ‘get” Flynn for political reasons.

I am not in a position to adjudicate, Flynn’s case. All of the facts are not clear. If he did willfully lie with intent to deceive in an official inquiry, perhaps he’s deserving of punishment. If, however, he made a misstatement because he did not remember the details of a prior conversation, which is what he claimed, perhaps not. Furthermore, it is reported that Flynn’s son, also named Michael, may have been under investigation for some vague violation of a trade statute, and Flynn was coerced into pleading guilty to a 1001 violation by a threat to prosecute his son if he was recalcitrant. Sounds like dirty dealing to me.

Now, it’s one thing to offer a less culpable criminal suspect to turn prosecution witness in exchange for his testimony against a more culpable one. It is quite another to coerce a person to plead guilty by threatening to prosecute a family member in an unrelated matter if the person remains unwilling to so plead. If Flynn;s son may have been involved in a corrupt and illegal activity, he should be investigated and, if appropriate, charged, regardless of what his father has done to please the FBI.

But Michael Flynn never should have agreed to speak with the FBI agents without legal counsel. He seems to have trusted who he believed were colleagues in the government.

This brings to mind the investigation of Richard Jewell, the security guard who was wrongfully accused of the 1996 Olympic bombing in Atlanta. Jewell found the bomb, and alerted attendees to evacuate the area and probably saved many lives. Because he fit an FBI profile of one who is likely to cause a dangerous situation like planting a bomb and then “discover” it and thus be regarded as a hero, Jewell was targeted as a suspect. The FBI tried a subterfuge to interrogate Jewell and get him to make statements that they could use to arrest and prosecute him. But Jewell had the sense to call a lawyer he knew. The lawyer told the FBI to back off instructed them to not interrogate his client with him being present. No doubt that the agents had in mind trapping Jewell into making an innocent misstatement and then charging him with a 1001 violation. Probably saved Jewell from wrongful arrest and possible prosecution. (The real bomber was later arrested, tried, and sentenced to life in prison.)

The lesson to be learned from Martha Stewart’s, Michael Flynn’s, and Richard Jewell’s cases is that no one should agree to be “interviewed” by federal law enforcement agents (I use the plural because there are always two of them – one to aks the questions, the other to write down his version of the answers) unless they have prior legal counsel ahead of the conversation. If approached, the only things to say are “I have a lawyer; he or she will be in touch with you so give me your card; have a nice day.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.